Presentation given at BC Assembly of First Nations - Legal and Strategy Session.

1. THE DUTY TO CONSULT – OVERVIEW & HOT TOPICS
BC – AFN Legal & Strategy Meeting
March 28-29, 2012
Merle Alexander
Co-Leader & Partner, Aboriginal Law Group
March 28, 2012

2. Overview
• Source
• Broad Purpose
• Specific Purpose
• Application
• Hot Topics (8)

3. Source
• Source of the duty is the honour of the crown:
• Haida: “The government’s duty to consult with
Aboriginal peoples and to accommodate their
interests is grounded in the honour of the
Crown”
• Mikisew: “The duty of consultation…flows
from the honour of the Crown…”

4. Broad Purpose
• The broad purpose of the duty to consult is
reconciliation between the Crown and Aboriginal
peoples:
“The duty to consult and accommodate is part of a process
of fair dealing and reconciliation that begins with the
assertion of sovereignty and continues beyond formal claims
resolution. Reconciliation is not a final legal remedy in the
usual sense. Rather, it is a process flowing from rights
guaranteed by section 35 of the Constitution Act, 1982”
(Haida)

5. Specific Purpose
• The specific purpose of the duty to consult depends
on the context:
> For asserted but unproven rights, the purpose of the
duty to consult is to protect these rights from
irreversible harm as the settlement negotiations
proceed (Rio Tinto)
> For proven rights, the purpose of the duty to consult is
to fill any procedural gaps in the treaty
(Mikisew and Little Salmon)

6. Application
• The duty to consult arises when
• The Crown has real or constructive knowledge of
the potential existence of the Aboriginal right or title;
and
• The Crown contemplates conduct that might
adversely affect that Aboriginal right or title (Haida)
• Consultation after the fact does not satisfy the duty, it
must occur prior to the proposed activities
(Ross River, Solid Gold)

7. Hot Topic # 1
Does Canadian law support Free Prior
Informed Consent?
YES
• Prior – consultation must occur before adverse
impacts to protect and preserve Aboriginal Title
and Rights
• Informed – minimal standards require
communication of applicable and relevant details
for informed understanding

8. …
• Consent – origin of this concept in Van Der Peet
• Haida stated where “asserted and unproven”
consent would not be available
• If Title or right is “proven and established” by
judicial affirmation or Government-to-
Government agreement, consent may be a legal
requirement
• Free Prior Informed Consent is supported by
Canadian case law, it is a Crown legal position
to deny it

9. Hot Topic # 2
Is the duty to consult purely a legal consideration?
NO
• Grounded in the honour of the Crown, the duty to consult
has both a legal and a constitutional character
(Kapp), it seeks to:
• Provide legal protection to Aboriginal and treaty
rights; and
• Further the goals of reconciliation between
Aboriginal peoples and the Crown (Rio Tinto)

10. …
• Consultation is “[c]oncerned with an ethic of ongoing
relationships” (Rio Tinto)
• Relationship between Aboriginal people and the
Crown; and
• Relationship between Aboriginal people and their
land, which is connected to and gives rise to their
identity, spirituality, laws, traditions, and culture

11. Hot Topic # 3
Does “consent” only mean veto?
NO
• Consent means “mutual consent” – only mutual
consent is consistent with the purpose of reconciliation
• Government to government agreements represent a
form of mutual consent
• Impact Benefit Agreements where the First Nation
supports a project may reflect mutual consent

12. Hot Topic # 4
Does the UN Declaration on the Rights of Indigenous
Peoples apply to the duty to consult?
YES
• On November 12, 2012, Canada issued a Statement of
Support endorsing the Declaration
• Declaration has international human rights that are
legally binding

13. Declaration in Canadian Law
• The Declaration describes core principles that
should guide harmonious and co-operative
relationships between indigenous peoples and
states such as equality, partnership, good
faith & mutual respect
• Same core principles guide reconciliation
and the procedural aspect of Aboriginal Title and
Rights – the duty to consult

14. Hot Topic # 5
Can the procedural/operational aspects of the duty
to consult be delegated to a third party?
YES
• While the ultimate legal responsibility for fulfillment of the duty
to consult resides in the Crown, its operational aspects can
be, and often are, delegated to those third parties directly
involved in the day-to-day resource development projects
(Solid Gold);
• Furthermore, industry proponents may be liable for their
failure to consult (Platinex, Taseko Mines Ltd)

15. Hot Topic # 6
How do historic and ongoing wrongs fit
into the duty to consult?
• In Rio Tinto, the court stated that:
Prior and continuing breaches, including prior failures
to consult, will only trigger a duty to consult if the
present decision has the potential of causing a
novel adverse impact on a present claim or existing
right… To trigger a fresh duty of consultation - the
matter which is here at issue - a contemplated Crown
action must put current claims and rights in
jeopardy.

16. In Accordance With Reality
• In other words:
• Historic and ongoing breaches of the duty to consult do not
in and of themselves trigger the duty to consult, BUT
• Historic and ongoing activities may increase the
significance or impact of a new activity
• This accords with reality, most development does not
happen in isolation but takes place in the context of
extensive existing or contemplated development which
has already reduced or removed the ability of an Aboriginal
people to practically enjoy or exercise their aboriginal rights or
aboriginal title

17. Upheld in West Moberly
• What is the proper approach to assessing the potential impact
on Treaty 8 rights given that West Moberly had traditionally
hunted a herd of caribou that had been drastically reduced in
numbers by past hunting and (more importantly) habitat
degradation?
• The Crown and First Coal argued against the Court
considering the depleted state of the caribou herd in
assessing the application as this would amount to bringing
historic matters in through the back door of considering
the current state of the herd

18. Upheld in West Moberly (2)
• The court rejected this argument stating that:
“[To consider the current depleted state] as within the scope
of the duty to consult is not to attempt the redress of past
wrongs. Rather, it is simply to recognize an existing state of
affairs, and to address the consequences of what may result
from pursuit of the exploration programs.
…
It is fair to say that decisions, such as those under review in this
case, are not made in a vacuum. Their impact on Aboriginal
rights will necessarily depend on what happened in the past
and what will likely happen in the future. Here it could not be
ignored that this caribou herd was fragile and vulnerable to any
further incursions by development in its habitat.”

19. Hot Topic # 7
Do standard public consultation processes satisfy
the duty to consult?
NO
• In Mikisew standard public notices and open houses which
were given were not sufficient – entitled to a distinct
consultation process
• Court also said that a consultation process that does not
contemplate accommodation is flawed
• The Joint Review Panel for Northern Gateway, Prosperity,
Site C and other projects will not have the legal authority to
accommodate and are essentially public stakeholder
processes, they will not likely satisfy the duty to consult

20. Hot Topic # 8
Can courts require parties to negotiate with
each other as part of the duty to consult?
YES
• In Platinex and Solid Gold, the court ordered the
parties to negotiate with one another
• Not clear who is supposed to pay for First Nations to
participate in such negotiations

21. Gayasixa - Thank you!