THE STATE OF THE LAW ON THE OBLIGATION TO CONSULT WITH FIRST NATIONS (August 2002)
by Nancy Morgan, Morgan & Associates
The purpose of this short paper is to provide those working for First Nations on referrals with a brief overview of the current state of the law on the obligation to consult with First Nations. Unfortunately, since the law is not frozen in time, this information may be out of date by the time you read it.
Over the last decade, the courts have reaffirmed and clarified the governments’ obligation to consult with First Nations in a number of important cases, including Sparrow and Delgamuukw and, more recently, the Taku River Tlingit and the Council of the Haida Nation cases.
The roots of the obligation to consult lie in the special relationship that exists between the federal and provincial governments on one hand and First Nations on the other. This relationship is described as "trust-like" or "fiduciary" in nature, which means that the governments have to act as if they were trustees and always keep the First Nations’ interests foremost in their minds. Certain federal and provincial laws also impose an obligation on governments to consult with First Nations. This means that the obligation may have more than one source. For example, the provincial government may have to meet two sets of rules regarding consultation – one under a law such as the Forest Act or Environmental Assessment Act and another arising from its special relationship with First Nations.
The obligation to consult arises in circumstances where the federal or a provincial government is proposing to make a decision or take an action that may infringe (i.e. negatively impact) on a First Nation’s aboriginal rights, including aboriginal title. In order for the government to justify its decision or action, it must show that it has a substantial and compelling reason for its decision or action. Secondly, it must show that the decision or action is consistent with the special fiduciary relationship between government and First Nations. As part of meeting the second part of the justification test, the government must show that it has consulted with the First Nation in a meaningful and effective way.
Some of the key points with respect to the obligations that arise from Delgamuukw and other important cases are as follows:
- The federal and provincial governments have a legally enforceable obligation consult with First Nations whenever the governments’ decisions or actions may infringe on a First Nation’s aboriginal rights, including aboriginal title.
- Third parties, whose activities may potentially infringe on a First Nation’s rights, also have a legally enforceable obligation to consult with that First Nation and seek workable accommodations with that First Nation. Their duty to consult is similar to, but separate from, government’s duty and extends to their day-to-day activities and operations.
- Government and third parties (such as industry or developers) must consult in a manner that is meaningful and effective. They must carry out their consultation with utmost good faith and the intention of substantially addressing the First Nation’s concerns. In particular, they must accommodate the First Nation’s cultural and economic interests, including its aboriginal title and rights. (For a more complete description of the obligation, see the excerpt from Delgamuukw set out at the end of this section.)
- The extent of the obligation to consult varies with the circumstances and ranges from consultation to consent depending on the type of First Nations rights that may be infringed upon and how serious the infringement is likely to be.
- Governments and third parties must consult with First Nations that have specifically claimed aboriginal rights, about potential infringements, before the aboriginal rights have been confirmed in a court decision or a treaty. This means that a First Nation does not have to prove the existence and scope of its aboriginal rights in the affected area before the obligation to consult arises. It need only show that there is a good chance that it has aboriginal rights in the area in question.
- Consultation generally requires that government and third parties fully inform a First Nation about a proposed decision or action and seek information from the First Nation about the impact of such an decision or action on the First Nation’s rights or interests. The First Nation must be given the opportunity to provide such information. Then, government and third parties must assess this information to determine the likelihood of the decision or action infringing on the First Nation’s rights and interests. Finally, government and third parties must seriously consider whether there are ways to avoid infringing or otherwise accommodate the First Nation’s rights and interests.
- The obligation to consult with First Nations whose treaty rights may be infringed by a decision or action is "if anything, more obvious where [government] has reduced its solemn promises to writing". This means the obligation to consult is usually clearer where a treaty has been signed because it is easier to prove the existence and scope of rights that are set out in writing and agreed to in a treaty.
- First Nations cannot refuse to be consulted and then argue that a decision was not properly made because they were not consulted. However, First Nations are entitled to a process that is separate from the regular public consultation process (such as open house sessions and public forums). Once First Nations have had the opportunity to review the relevant information, they then have an obligation to express their interests and concerns.
- The outcome of a court challenge regarding the infringement of an aboriginal right by a decision or an action of government or a third party will likely be determined by the court’s conclusions on the likelihood and extent of the potential infringement and the quality of consultation and accommodation.
- The courts have occasionally ordered governments to pay First Nation’s court costs in cases involving the obligation to consult in advance of trial because of the exceptional nature of the cases. First Nations may advance the argument that governments and third parties should similarly be obliged to assume a First Nation’s costs of participating in consultation processes.
WHAT DOES THIS MEAN FOR YOU?
Having considered what the law has to say about the obligation to consult, the question then arises of "what does the obligation to consult mean for you as a First Nations referrals practitioner?"
1. Governments and third parties cannot simply ignore your First Nation’s rights as long as you can show your First Nation probably has aboriginal rights that may be infringed by their decisions or actions. They are under a positive obligation to talk to you, to consider what you have to say and accommodate your concerns. It is not enough for them to simply send a few letters or faxes, they must consult in a meaningful and effective way.
2. You do not have to prove your rights in court before the government’s and third parties’ obligation to consult arises.
3. You need to do what you can to gather evidence so you can demonstrate to government and third parties that your First Nation has aboriginal rights. You should also provide as much of this information to government and third parties as possible to support your position (bearing in mind you may not want to share certain information of a confidential or sensitive nature).
4. It is very important to show the extent of the potential impact of the decision or action in question. For that reason, you should be sure to provide information to government and the relevant third parties on how the proposed decision or action may impact on your rights (e.g. how it may restrict your ability to exercise certain rights or limit the ways in which you could use the land in the future). It is not enough to simply advise them that you do not support certain activities that will be taking place within your traditional territory.
5. It is useful to gather information that could be used to challenge the underlying basis for the decision or action itself. For example, if you can show that the suggested benefits of the project or initiative are questionable (e.g. there is no demand for what they intend to produce) or the likely benefits will be outweighed by the negative effects of the project, you may be able to show that there is no compelling basis for the project going forward in the first place.
6. You should determine what resources and time frame are required in order to satisfy yourselves that you have been consulted in a meaningful and effective way. If you require resources to participate in consultations or an extension of the time period you have been given to respond to a proposal, you should make the request in writing to the relevant government agencies and third parties.
7. You should keep a record of all the written and oral communications (including notes of meetings and phone calls, as well as copies of all letters and notices) related to the activities in question. You will need this information if you want to later show that the consultation was not adequate.
8. If your First Nation has a treaty, make sure you have a clear understanding of your First Nation’s rights under that treaty. Gather information about the treaty and, especially for the older treaties, find out what oral commitments were made as they may be very important to interpreting the treaty.
9. Third parties, including industry and developers, now have to consult with you (it is no longer just an obligation on government). The courts have said they must carry out their work with minimum infringement of First Nations’ preferred way of exercising their rights. This may mean they are more willing than ever before to consider arrangements that may meet your interests and address your concerns, such as joint ventures, impact benefit agreements, or employment and training agreements. They may also be willing to take additional steps to address your concerns about the impact on the environment. However, by consenting to a project or entering into an agreement, you may be limiting your ability to advance a legal claim at a later date opposing the project based on your aboriginal rights. It is likely that governments and third parties would use such an agreement to show that you were consulted, your interests were accommodated and you were provided with the opportunity to share in the economic benefits.
10. Finally, you need to decide what your First Nation’s priorities are so you can determine when you want to negotiate arrangements with governments or third parties and when you want to oppose a project or initiative because it will have too significant an impact on your First Nation. For a further discussion on this point, please see the information on the home page under the heading "Using the Toolbox".
EXCERPT FROM DELGAMUUKW DECISION
The following passage from the Supreme Court of Canada’s decision in Delgamuukw is often quoted in describing the obligation to consult:
Moreover, the other aspects of aboriginal title suggest that the fiduciary duty may be articulated in a manner different than the idea of priority. This point becomes clear from a comparison between aboriginal title and the aboriginal right to fish for food in Sparrow. First, aboriginal title encompasses within it a right to choose to what ends a piece of land can be put. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (paragraph 168).
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