Paper: Developments in the Law of Consultation and Aboriginal People – 2002

by Robert Freedman and Hugh Braker, Q.C., Braker & Company
reproduced with permission and courtesy of the B.C. Aboriginal Fisheries Commission

Under the Sparrow analysis, one of the requirements imposed on the Crown (federal and provincial) when the Crown wishes to infringe any aboriginal or treaty right is that the Crown is required to consult with First Nations in respect of the proposed infringement. The “duty to consult” was first set out by the Supreme Court of Canada in respect of aboriginal rights in the Sparrow case. The duty was extended to aboriginal title in Delgamuukw, and it also applies to treaty rights, because the Supreme Court of Canada held, in Badger v, The Queen, that the Sparrow justificatory test applies to treaty rights in the same way that it applies to aboriginal rights, Recently, the British Columbia Court of Appeal held in both Haida and Taku that the duty to consult arises prior to a First Nation having to prove its rights or title in court. Despite the various decisions of courts on the issue of consultation, there has been little jurisprudence thus far on exactly what kind of consultation will fulfil the duty -the cases have been more concerned with process, rather than with content. Nonetheless, the decisions do provide for some guidance in respect of how the Crown-First Nation relationship is to be “managed.”

It is also our view that the development of the law on consultation has given aboriginal people one of their most effective tools in pursuing recognition of their rights. Unfortunately, aboriginal people are not utilizing this tool effectively.

Consultation Requirements

As noted above, the duty to consult has been discussed in a number of cases. It was first discussed in terms of the Crown-aboriginal relationship in R. v. Sparrow, where the Supreme Court of Canada set out a test which the Crown must meet in order to justify an infringement of aboriginal rights. In that case, the aboriginal right at issue was a right of the Musqueam First Nation to fish for food, social and ceremonial purposes. The Court tied the duty to consult to the Crown’s fiduciary duty to First Nations. With respect to consultation, the Court said the following,

The “duty to consult” has been applied in a number of different instances beyond conservation such as where construction of a mine or some other project may infringe aboriginal rights or title.

In Delgamuukw, the Supreme Court of Canada discussed the duty to consult, in relation to aboriginal title, saying this,

In a number of other cases, various principles respecting the nature and scope of consultation have been set out. Some of those principles arc summarized below:

(a) There is always a duty of consultation and the requirements of that consultation vary with the circumstances, such as the nature of the Aboriginal right and the potential infringement of the right and the strength of the First Nation’s evidence of its rights or title (Delgamuukw, par. 168, Taku, par. 201, and see also Haida Nation);

(b) In some cases, a decision may require the consent of a First Nation (Delgamuukw);

(c) Consultation arises where the Crown is implementing a conservation measure (Sparrow) and it is also required where any Crown measure, such as permits and application approvals, may infringe aboriginal rights or title (Delgamuukw, Halfway River, Taku, Haida Nation);

(d) Consultation amounts to more than simply making a few telephone calls or sending a few letters or faxes; the Crown cannot say that it has consulted by referring to how many letters or phone calls it has made, as the consultation must be meaningful (Halfway, Taku);

(e) It is up to the Crown, and not to First Nations, to initiate consultation (Sampson)

(f) The duty to consult exists irrespective of whether or not a First Nation has proven its claims in court (Taku, Haida);

(g) There is a duty on the Crown to ensure that the First Nation is provided with “full information on the conservation measures and their effect on the Indians and other user groups” and such information must be provided on a timely basis (Jack. par. 77; Sampson ,Halfway River, pars. 78- 79);

(h) The Crown is required to explain the need for a particular conservation measure (Sampson, par.107);

(i) The Crown has a duty to fully inform itself on the fishing practices of the Aboriginal group and their views of the conservation measures. (Jack, par. 77; Halfway, par. 133);

(j) The Crown’s duty to consult is not fulfilled by merely waiting for a First Nation to raise the question of its Aboriginal rights (Sampson, par. 109). There is a positive duty on the Crown to inform and consult. (Halfway River, par. 166);

(k) The fact that a First Nation receives adequate notice of an intended decision does not mean that there has been adequate consultation. (Halfway River, par. 159);

(l) “The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that Aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action…” (Halfway River, par, 160);

(m) “There is a reciprocal duty on Aboriginal peoples to express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means available to them.” (Halfway River, par. 161);

(n) Providing “standard information” which is of the same form and substance as the information being given to all interested stakeholders, taken alone, does not constitute consultation within the meaning of s. 35(1) (Mikisew);

(o) First Nations are entitled to a distinct consultation process apart from public forums or general public consultations (Mikisew). A refusal by a First Nation to attend public meetings will not necessarily lead to the conclusion that the First Nation has frustrated the consultation process.

(p) “…the consultation must be undertaken with the genuine intention of substantially addressing First Nation concerns (Id, par. .. Taku, par. 10S), and an infringing measure cannot be justified simply by “economic forces” alone (Haida Nation, par. 55)

(q) The Crown owes First Nations a legally enforceable duty to consult with them in good faith and must endeavour to seek workable accommodations between the aboriginal and other interests at stake. (Haida Nation, par, 60; Taku, par. 199);

(r) The Crown’s duty to consult and accommodate the rights and title at stake extends to both the cultural and economic interests of the aboriginal people involved. (Haida Nation; par. 48); and

s) The duty to consult and to seek an accommodation is a free-standing legal and equitable duty which does not arise simply on the basis of a Sparrow analysis, but is part of the Crown’s broader fiduciary relationship with aboriginal peoples (Haida Nation) par. 55).

In Gladstone, in a passage quoted earlier in this paper in respect of the allocation of priority, the Supreme Court of Canada said that there are both procedural and substantive considerations at the justification stage:

This passage should also be considered in respect of what the Crown must do to fulfil its duty to consult with First Nations.

While much of the focus of consultation decisions is on the procedural aspect – how much consultation, with whom should consultation be done, how should consultation be carried out –the point must not be lost that consultation also contains a substantive aspect. This is signified by cases like Haida Nation which refer to the need to accommodate aboriginal interests, including cultural and economic concerns. Thus, it is not enough for the Crown to point to the number of discussions it has had with a First Nation, or the amount of information that it has disclosed, although those procedural concerns are important. The Crown must also be able to demonstrate that it has accommodated and taken seriously the aboriginal interest at stake, which is a substantive concern.

RECENT CASES

Haida Nation v. BC and Weyerhaeuser (2002, BC Court or Appeal), Taku River Tlingit First Nation v. Redfern Resources et al. (2002, BC Court of Appeal) and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (2001, Federal Court Trial Division)

The three cases deal, for the most part, with the duty of the Crown (federal and provincial) to consult, with First Nations in accordance with the Crown’s constitutional and fiduciary duties. The first two cases are British Columbia cases dealing with the assertion of aboriginal and treaty rights and consultation requirements prior to the “proof” of those rights and title in court. The third case concerns consultation duties of the federal Crown in respect of an Alberta Treaty 8 First Nation. The Mikisew case would, of course, be important to Treaty 8 First Nations in British Columbia. However, all three cases are important in terms of aboriginal or treaty rights because the courts have made it clear that the various legal tests for proof of rights, infringement and justification arising from Sparrow and other cases apply to both aboriginal rights and treaty cases. The specific terms of a treaty such as Treaty 8 will, of course, play role in respect of specific issues in respect of which the Crown must consult.

Facts:

Taku and Haida

In both cases, the BC First Nations bad asserted their rights and title in various ways, such as in the BC Treaty Process and in other ways such as in the Comprehensive Claims Process such that the Crown had been “on notice” about the assertion of the rights and title. In the Haida Nation case, the courts stressed the point that the Haida had long objected to Crown decisions authorizing the logging of the old-growth forests of Haida Gwaii, the methods of logging being used, and the environmental effects of the logging on the land, watersheds, fish, and wildlife. The lower court judge held, and the BC Court of Appeal accepted, that “there is a reasonable possibility that the Haida will be able to establish Aboriginal title to at least some parts of the coastal and inland areas of Haida Gwaii as well as an Aboriginal right to harvest red cedar trees from the various old-growth forest areas of Haida Gwaii.”

The Taku case concerned a challenge by the First Nation to the issuance of a Project Approval Certificate under the British Columbia Environmental Assessment Act for a mine project, while the Haida case concerned a challenge to the renewal of certain decisions authorizing the replacement of Tree Farm Licence 39 by the provincial Minister of Forests.

Mikisew

This case concerned an application by the First Nation for judicial review of a decision of the federal Crown (Minister of Canadian Heritage) to approve construction of a winter road through Wood Buffalo National Park for a purpose not related to park management.

In these three cases the first two of which are recent decisions of the BC Court of Appeal, and the third, a recent decision of the Federal Court, Trial Division, some of the major points decided and which are of relevance in respect of the issues raised in this paper, are the following:

DISCUSSION

A.     Taku

For purposes of this discussion, the main issue before the Court of Appeal was whether the lower court judge had erred in determining that the Crown owed a constitutional and fiduciary duty of consultation to the Tlingit who had asserted, but not yet proven, aboriginal rights or title in court.

A majority in the Court of Appeal held that the Crown’s duty to consult arises prior to a First Nation having to prove its rights and title in court. The Court ordered that the matter of the Project Approval Certificate be sent back to the Ministers for reconsideration, taking into account the need to consult with and accommodate the interests of the First Nation.

This was the first court decision in which it was held that the Crown’s duty to consult arises prior to proof of rights or title in court. Recent decisions of British Columbia courts had said that there may be a moral or administrative law duty of fairness which required the Crown to take into account aboriginal input, but that there was no fiduciary or constitutional duty to do so since the rights or title were not yet “proven.” This had the effect of giving First Nations without treaties or court judgments virtually no practical means of enforcing their rights.

In Taku, the Court spent a great deal of time tracing the evolution of aboriginal rights and Crown duties and it stressed the point that aboriginal rights and title do not arise from a grant by the Crown but are interests which predate Crown sovereignty. Because they are pre-existing legal interests, they do not require proof in court before the Crown ‘s duties arise. It is not yet clear whether the asserted but not yet proven rights and title of First Nations will require anything more of the Crown than a duty to consult. There are a number of interesting questions raised by the case, particularly those related to the division of powers and the ability of the province to pass legislation which infringes aboriginal and treaty rights. Those issues are not directly relevant to the issues being raised in this paper.

B.     Haida

The main issue before the Court (although there was another preliminary issue related to whether the assertion of rights or title could be an encumbrance on Crown title which the Court answered in the negative based on a prior decision of the Court on the same issue) was whether there is an obligation on the Crown and on third parties, such as industry, to consult aboriginal people who have specifically claimed aboriginal title or aboriginal rights, about potential infringements of those rights, before rights or title have been determined by a court?

The Court of Appeal followed its previous decision in the Taku case and held that the duty to consult arises before there is actually proof of rights or title in a court case. As in the Taku case, the Court drew a distinction between the requirement for consultation prior to proof, as was required in both cases and a situation in which a First Nation or individual member of the Nation is charged with an offence, such as fishing without a license, where aboriginal rights or title is raised as a defence to the charge. In the second situation, proof of the right (unless the right is admitted by the Crown) is part of the litigation process, as the onus is on the First Nation to prove the existence of the right or title. However, the Court again stressed the point that just because proof of the right or title might be required as a defence to a charge, this does not mean that there is never a consultation duty prior to proof in a court case.

This decision, which followed Taku, confirmed the point that the Crown’s duty to consult arises prior to any proof of rights or title being required in court. The Court also said that there are legal and equitable duties on third parties to consult as well.1(More information) The decision expanded on some of the principles raised in Taku. Some of the important points from the case are discussed below.

The Court made it clear that the Crown cannot frustrate the treaty process and at the same time, continue to give away First Nations resources without engaging in consultation on the basis that there is no duty to consult until rights or title are actually proven in court.

The court said that the duty to consult is always present. The Crown and third parties cannot attempt to escape the duty by arguing that the existence of the duty depends on determining the precise nature and scope of the right of title that is claimed, or on differences between statutes, or on the basis that some statutes may require consultation, while others do not. The Court said that the “trust-like relationship and its concomitant fiduciary duty permeates the whole relationship between the Crown, in both of its sovereignties, federal and provincial, on the one hand, and the aboriginal peoples on the other. One manifestation of the fiduciary duty of the Crown to the aboriginal peoples is that it grounds a general guiding principle for s. 35(1) of the Constitution Act, 1982…where there are fiduciary duties of the Crown to aboriginal peoples…that obligation to consult is a free standing enforceable legal and equitable duty …[which does not] arise simply from a Sparrow analysis of s. 35. It stands on the broader fiduciary rooting of the Crown’s relationship with the Indian peoples who are under its protection.” (Emphasis added).

This case goes much further than other cases by saying that the fiduciary duty is present in or permeates the whole of the Crown-First Nation relationship. Many decisions have been narrowing the scope of the Crown’s fiduciary duty. On the basis of the Haida Nation case, this means that it will be much more difficult for the Crown to escape responsibility by saying, as it often does, that “we are not a fiduciary in this instance.”

Also, by saying that the obligation to consult is a “free standing enforceable legal and equitable duty” which does not arise solely out of a Sparrow analysis, this means that the “duty to consult” can be raised as a separate and independent ground for relief in litigation or possibly as an independent cause of action, as well as a separate argument in any negotiations. It means that any Crown decisions which may infringe aboriginal rights or title would now be subject to some sort of consultation so long as the First Nation asserts (or has previously asserted) its rights and title.

The Court said that the “interlocutory injunction process” is still a valuable interim process for balancing competing interests while litigation is pending. But it said that the consultation framework “could provide the beginning of an alternative framework for dealing with the reconciliation of claims to constitutionally protected aboriginal title and aboriginal rights on the one hand, and the public interest, both aboriginal and non-aboriginal, in the elusive economic prosperity of the primary industries of the province.” (Emphasis added) The Court went on to say that the injunction process is not suitable in every case and that:

This statement has significant implications for all First Nations. We know from cases like Delgamuukw as well as Taku and Haida Nation that there is always a duty to consult (whether or not rights and title have been proven in court) and that the scope of such consultation varies with the facts and circumstances of each case. That duty may even reach the level of requiring the First Nation’s consent in some instances, such as where a governmental decision would have the “effect of significantly infringing or even destroying an aboriginal hunting or fishing right.

In the injunction process, a court must answer a number of questions to decide if the injunction should be issued — is there a “serious issue to be tried” (good prima facie evidence is required); will “irreparable harm” be suffered if the injunction is refused; and does the ‘”balance of convenience” lie with the group or individual seeking the injunction? In virtually every injunction case brought by First Nations in the last number of years, the courts have held that the “balance of convenience” lies with industry or in favour of preserving non-aboriginal jobs or economic activity. In practice, there is no balancing of rights which would protect First Nations while treaties are being negotiated or while claims are before the courts.

In this new “consultation process” the courts already begin with the position that consultation, and the reconciliation mandated by that process, is required in every case – “there is always a duty of consultation.” While some evidence of a “good prima facie case” may be required or at least would strengthen the consultation obligations, Crown knowledge of preexisting aboriginal claims, such as through the BC Treaty Process, the Comprehensive Claims Process, or through other processes or negotiations may well found at least a minimal consultation duty. The balancing of rights is done within the consultation process, whereas in the injunction process, there is no real balancing that gives a practical result to First Nations, if the court concludes that the “balance of convenience” does not favour the First Nation.

In terms of the content of the consultation duty, the Court said that both the Crown and Weyerhaeuser “had an obligation to consult the Haida people…about accommodating the aboriginal title and aboriginal rights of the Haida people when consideration was being given to the renewal of Tree Farm Licence 39 and Block 6. That obligation extended to both the cultural interests and the economic interests of the Haida people.“(Emphasis added)

On the basis of this and other cases, consultation must be in good faith with the object of substantially addressing and accommodating the aboriginal interests at stake. The reference to economic and cultural interests should mean that traditional knowledge (discussed below) must also be part of the consultation process, as opposed to a reliance solely on “scientific information” with which courts and government are normally more familiar. The Court made it clear that the Haida had a strong case (“good prima facie case”) which strengthened the type of consultation that was required. But the court also said that something less than such a case does not remove the consultation duty. Generally, the stronger the evidence or “prima facie” evidence, the more onerous the consultation duty.

The “duty to accommodate” aboriginal rights and title, including cultural and economic interests, should be read together with other statements about the content of the duty to consult, which includes the duty to provide full information (R. v. Jack, BC Court of Appeal), the duty of the Crown to “fully inform itself” of the fishing or other practices of the First Nation, including the views of the First Nation on conservation or other measures (Jack), and to ensure that First Nations representations are “substantially addressed” (Delgamuukw) and “seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.” (Halfway River, BC Court of Appeal).

The Taku and Haida cases appear to put far more onerous requirements on the Crown in the respect of consultation. While these cases (and all others) are, of course, open to interpretation, they can be used in the DFO-First Nations context as a means of building trust and working toward a better understanding of each other’s views. They can be read as requiring give and take between the Crown, First Nations and industry. This give and take and information sharing must occur before a decision is made, otherwise the Crown (and industry) will be unable to show that they have seriously considered, accommodated and integrated the interests and input of the First Nation. What is often lacking in the current form of consultation is a middle stage where the Crown listens to the First Nation and then goes back to the First Nation to gather more information and input before a decision is made. Perhaps that will change.

Although both Taku and Haida Nation say that the duty to consult arises prior to proof of rights and title in court, both cases stressed the point that the Crown had been aware of the aboriginal claims for some time, including evidence of the rights and title being asserted. We take this point to mean that the mere assertion of rights and title, without at least some evidence to back up the claims, will likely result in a very minimal level of consultation. The duty to consult is strengthened by putting the Crown and third parties on notice, and by the First Nation having some evidence ready to backup its claims, even though such evidence need not be “proven” in court before the consultation duty arises.

Finally, the Court said that it is not enough for the Crown and Third parties to say that an infringement is justified by economic considerations such that any decision would pass scrutiny even in the absence of consultation. We note that this finding could be at odds with what the Supreme Court of Canada has said in Delgamuukw and Gladstone, namely, that the economic needs of non-aboriginaI peoples could, in the right circumstances, be a proper justification for the infringement of rights and title. What the Court appear to be saying in Haida Nation is that, on its own, the mere fact that there may be a loss of jobs or other negative economic consequences for industry if they are not permitted to log, cut, or fish, is not enough to displace the consultation duty.

C.     Mikisew Cree Nation

Although various legal issues were raised concerning procedures under the Canadian Environmental Assessment Act and the Canada National Parks Act and associated regulations, and in respect of common law principles of natural justice and administrative fairness, the focus of our discussion will be on the part of the judgment related to the fiduciary and constitutional duties owed by the Crown to Mikisew.

Madam Justice Hansen of the Federal Court, Trial Division held that the decision to approve the road should be set aside because that decision infringed on the First Nation’s treaty rights to hunt and trap in the park and because the decision could not be justified on a Sparrow analysis. She rested her decision on the basis that there was no valid legislative objective for the interference, although she went on to say that, if she was wrong on this point, there was also a failure to consult properly.

There are a number of findings of Hansen J, which have implications for the Crown and for all First Nations in British Columbia (and elsewhere), irrespective of whether those First Nations are asserting aboriginal or treaty rights. Those findings are discussed below.

The Court noted (and accepted) that there were a number of adverse impacts on the First Nation’s Treaty right to hunt and trap in the park, including potential adverse economic and cultural impacts. As in the Haida Nation case, it was held that consultation must extend to these sorts of issues. Hansen J. would have found in favour of the Mikisew Cree Nation on the first branch of the justification test – whether there was a valid legislative objective for the infringement. She went on to consider other parts of the Sparrow test as well.

It was held that there is a difference between “public consultation” and “First Nations consultation.” It was held that:

Hansen J. also rejected the Crown’s argument that open house sessions constitute adequate
consultation:

This case makes it clear that First Nations cannot be treated as being one of many interested stakeholders. At the very least, First Nations are entitled to a distinct process and possibly to a more extensive one in terms of consultation. Failure to participate, particularly where no other process is offered, is a proper ground for the First Nations to refuse to consult.

Another important point is that the requirements for consultation will vary from one First Nation to another and that it cannot be assumed that discussions at a watershed level or discussions with an aboriginal representative at a meeting, such as at the Pacific Salmon Commission, will satisfy the Crown’s duty to consult, unless a First Nation has specifically authorized an aboriginal representative to undertake legally enforceable consultations on its behalf. This may be termed the “with whom” issue in respect of consultation.

It is important in respect of the DFO-First Nation relationship that each side understand who is entitled to undertake consultation, what the consultation is about, and that it is unfair and improper to argue in court that “any” aboriginal person at a meeting can be “deemed” to have consulted, irrespective of whether the First Nation authorized such consultation.2 (More information). At the same time, it is only fair that a First Nation make it clear to DFO that a particular process does or does not constitute “legal consultation.” In its decision in Van der Peet, the Supreme Court of Canada held, at par. 69, that Aboriginal claims must be adjudicated on a specific rather than a general basis:

In R. v. Marshall, [1999] 3 S.C.R, 533 [Motion for Reconsideration], the Supreme Court of Canada said essentially the same thing in respect of the Crown’s justification of an infringement of aboriginal or treaty rights, at par .22:

The principles enunciated in these two cases apply with equal force to consultation about aboriginal rights and title, as consultation forms part of the justificatory test (and, by virtue of Haida Nation), is an independent enforceable legal and equitable duty outside of Sparrow-type situations. Aboriginal rights, which are specific to each First Nation, would be rendered meaningless if consultation could be done at the level of aboriginal organizations, or at some other larger watershed level rather than with the particular First Nation whose rights are at stake. It is also clear that First Nations can choose to carry out their consultations at a larger forum level.

The “with whom” or “deemed consultation” issue was raised by the Institute for Dispute Resolution, University of Victoria, in their Independent Review of Improved Decision Making in the Pacific Salmon Fishery -Final Recommendations, (hereinafter “Independent Review”) at p. 45:

Representation and Participation.

The issue of representation or participation on the advisory boards proposed in Fisheries and Oceans Canada’s Discussion Paper (e.g. Allocation and Licensing Board) was seen to be problematic to the First Nations organizations with which we exchanged information due to the broad diversity of First Nations involved in the salmon fishery the nature of decision-making within their Nations and the fact that some are participating in the BC Treaty process and others are not. We were advised that previous experience with multi-party bodies did not allow for an effective First Nations voice in the dialogue. There was also concern that the proposed advisory bodies might make decisions which would impact upon existing aboriginal or treaty rights. …

In terms of First Nations participation in policy and allocation decision making, the objectives of First Nations participation should be to achieve integration without compromising their constitutional rights while being mindful of the fact that many are engaged in negotiations that may further define those constitutional rights. As a result, if there are negotiations, for example, in association with the allocation policy, First Nations are going to want to observe, or perhaps engage in those negotiations. Moreover, if First Nations think that policy or allocation decisions are going to compromise their rights, they need a forum to deal with those concerns on a government to government basis to ensure there is no infringement and ensure that the fiduciary duty of the Crown is fulfilled before a decision is made.

The above comments apply to all species of fish. For treaty First Nations, the wording of the treaty may dictate some of the issues that must be discussed. The internal workings (political and social structure) of a First Nation will also define the proper persons in the First Nation with whom consultation must be held. While the First Nation must specify the proper representatives for consultation, it is clear that the Crown cannot pick and choose the person(s) with whom it wishes to consult if it is to satisfy its legal duties.

As an example, for a First Nation focused primarily on fishing herring spawn on kelp, a consultation process which requires that First Nation’s input in late February or early to mid March would be unworkable, as many members of that First Nation would be out fishing. This is also true for other kinds of fishing or hunting – there are certain times of the year when members of the First Nation are focused on food, social, ceremonial and commercial harvesting of resources. The failure of a consultation process to take this into account would not be proper consultation. In other words, the process of consultation must take into account the needs and requirements of both the Crown and First Nations, although accommodation must be made when there is a need to consult which does not fit conveniently within the preferred time frames of the parties involved.

Implications

We wish to re-emphasize the following points from the above noted decisions.

A.     Taku

1.     This was the first court decision in which it was held that the Crown’s duty to consult arises prior to proof of rights or title in court. Recent decisions of British Columbia courts had said that there may be a moral or administrative law duty of fairness which required the Crown to take into account aboriginal input, but that there was no fiduciary or constitutional duty to do so since the rights or title were not yet “proven.” This had the effect of giving First Nations without treaties or court judgments virtually no practical means of enforcing their rights. The Court spent a great deal of time in tracing the evolution of aboriginal rights and Crown duties and stressed the point that aboriginal rights and title do not arise from a grant by the Crown but are interests which predate Crown sovereignty. Because they are preexisting legal interests, they do not require proof in court before the Crown’s duties arise. It is not yet clear whether the asserted but not yet proven rights and title of First Nations will require anything more of the Crown than a duty to consult.

2.     The majority said the following about the power of the province to infringe aboriginal rights:

This statement has significant implications for all First Nations. We know from cases like Delgamuukw as well as Taku and Haida Nation that there is always a duty to consult (whether or not rights and title have been proven in court) and that the scope of such consultation varies with the facts and circumstances of each case. That duty may even reach the level of requiring the First Nation’s consent in some instances, such as where a governmental decision would have the effect of significantly infringing or even destroying an aboriginal hunting or fishing right.

In the injunction process, a court must answer a number of questions to decide if the injunction should be issued — is there a “serious issue to be tried” (good prima facie evidence is required}; will “irreparable harm” be suffered if the injunction is refused; and does the “balance of convenience” lie with the group or individual seeking the injunction? In virtually every injunction case brought by First Nations in the last number of years, the courts have held that the “balance of convenience” lies with industry or in favour of preserving non-aboriginal jobs. In practice, there is no balancing of rights which would protect First Nations while treaties are being negotiated or while claims are before the courts.

In this new “consultation process” the courts already begin with the position that consultation, and the reconciliation mandated by that process, is required in every case – “there is always a duty of consultation.” While some evidence of a “good prima facie case” may be required or at least would strengthen the consultation obligations, Crown knowledge of preexisting aboriginal claims, such as through the BC Treaty Process, the Comprehensive Claims Process, or through other processes or negotiations may well found at least a minimal consultation duty. The balancing of rights is done within the consultation process, whereas in the injunction process, there is no real balancing that gives a practical result to First Nations, if the court concludes that the “balance of convenience” does not favour the First Nation.

4.       Unlike previous cases, the Court said that the duty to consult applies to both the Crown and to industry (Weyerhaeuser in this case.) In our view, third parties are required, as a practical matter, to consult with First Nations because those third parties are dependent on the Crown (which owes fiduciary duties to consult with First Nations) for permits, approvals and licences. But no court, until now, has said, as a matter of law, that industry must consult. We note that there is a further hearing on June 4th before the same panel of the Court of Appeal that heard the Haida Nation case to determine the nature of Weyerhaeuser’s consultation duties. The company will argue that the Court was wrong to say that it had a consultation duty.

5.       In terms of the content of the consultation duty, the Court said that both the Crown and Weyerhaeuser “had an obligation to consult the Haida people…about accommodating the aboriginal title and aboriginal rights of the Haida people when consideration was being given to the renewal of Tree Farm Licence 39 and Block 6. That obligation extended to both the cultural interests and the economic interests of the Haida people.” (Emphasis added)

6.       On the basis of this and other cases, consultation must be in good faith with the object of substantially addressing and accommodating the aboriginal interests at stake. The reference to economic and cultural interests should mean that traditional knowledge must also be part of the consultation process, as opposed to “scientific information” with which courts and government are normally more familiar. The Court made it clear that the Haida had a strong case (“good prima facie case”) which strengthened the type of consultation that was required. But the court also said that something less than such a case does not remove the consultation duty. Generally, the stronger the evidence or “prima facie” evidence, the more onerous the consultation duty.

The “duty to accommodate” aboriginal rights and title, including cultural and economic interests, should be used together with other statements about the content of the duty to consult, which includes the duty to provide full information (R. v. Jack, BC Court of Appeal), the duty of the Crown to “fully inform itself” of the fishing or other practices of the First Nation, including the views of the First Nation on conservation or other measures (Jack), and to ensure that First Nations representations are “substantially addressed” (Delgamuukw) and “seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action” (Halfway River, BC Court of Appeal).

The days of the Crown sitting back and waiting for First Nations to initiate consultation, or limiting their obligation to faxing out a proposal or referral and demanding answers in a few days, or giving First Nations generally available public information and then waiting to receive a few comments from First Nations should be over. If that is all the Crown does, it risks court actions on a failure to consult. The new duties of consultation are far more onerous. In our view, this should mean that there is discussion and give and take between the Crown, First Nations and industry – and this give and take must occur before a decision is made, otherwise the Crown will be unable to show that it seriously considered, accommodated and integrated the interests and input of the First Nation. What is lacking in the current form of consultation is a middle stage where the Crown listens to the First Nation and then goes back to the First Nation to gather more information and input before a decision is made.

6.      Although both Taku and Haida Nation say that the duty to consult arises prior to proof of rights and title in court, both cases stressed the point that the Crown had been aware of the aboriginal claims for some time, including evidence of the rights and title being asserted. We take this point to mean that the mere assertion of rights and title, without at least some evidence to back up the claims will likely result in a very minimal level of consultation. The duty to consult is strengthened by putting the Crown and third parties on notice, and by the First Nation having some evidence ready to back up its claims, even though such evidence need not be “proven” in court before the consultation duty arises.

7.      Finally, the Court said that it is not enough for the Crown and third parties to say that an infringement is justified by economic considerations such that any decision would pass scrutiny even in the absence of consultation. We note that this finding could be at odds with what the Supreme Court of Canada has said in Delgamuukw and Gladstone, namely, that the economic needs of non-aboriginal people could, in the right circumstances, be a proper justification for the infringement of rights and title. What the Court appears to be saying in Haida Nation is that, on its own, the mere fact that there may be a loss of jobs or other negative economic consequences for industry if they are not permitted to log, cut, or fish, is not enough to displace the consultation duty.

C.      Mikisew

There are a number of findings of Hansen J. which have implications for all First Nations in British Columbia (and elsewhere), irrespective of whether those First Nations are asserting aboriginal or treaty rights:

1.      The Court noted (and accepted) that there were a number of adverse impacts on the First Nation’s treaty right to hunt and trap in the park, including potential adverse economic and cultural impacts. As in the Haida Nation case, consultation must extend to these sorts of issues.

2.      The Court commented on what a First Nation must demonstrate to show that its rights have been infringed under the first branch of the Sparrow test, where the onus is on the First Nation to prove infringement of the right. In Sparrow, the Supreme Court of Canada said that certain questions must be asked to see if there has been a prima facie infringement of the right, including whether the limitation is unreasonable, whether the regulation imposes undue hardship, and whether the regulation denies to the holders of the right their preferred means of exercising the right. The Court agreed with the Mikisew Cree Nation that this does not constitute a three-part test in which all elements have to be proven before an infringement is found. It was held that the real question is simply, “is there an adverse impact?” The Court said that this conclusion followed from various decisions of the Supreme Court of Canada.

3.      It was held that an enhanced regional transportation network for the communities surrounding the park (i.e. construction of the winter road) is not a compelling and substantial objective. It was held that “[a]llowing the social and economic interests of other communities to justify diminishing Mikisew’s right to trap and hunt cannot be said to be in recognition of the prior occupation of this land by the Mikisew.” This should be considered together with the comment in Haida Nation that economic issues, alone, do not constitute justification for infringing aboriginal rights. The “economic consequences” are consequences for both First Nations and non-aboriginal peoples and, in light of the two decisions, both types of economic consequences must be considered by the courts. Hansen J. would have found in favour of the Mikisew Cree Nation on the first branch of the justification test – whether there was a valid legislative objective for the infringement. She went on to consider other parts of the Sparrow test as well.

4.      It was held that there is a difference between “public consultation” and “First Nations consultation.” Providing First Nations with standard information that is available to all interested parties or stakeholders, taken alone, does not satisfy the Crown’s fiduciary and constitutional duty to consult. Nor does inviting First Nations to a public or open forum or meeting satisfy that duty. The fact that a First Nation does not participate in public meetings or an open forum because it does not consider this to be a proper forum for consultation will not be enough for a court to conclude that the First Nation has frustrated the consultation process. On the other hand, there is case law which, in effect, “deems” First Nation participation in meetings or forums or watershed forums as satisfying the Crown’s consultation duties, even if the discussion has nothing to do with the rights of the First Nation, and even in some cases where representatives of a particular First Nation are not present. In our view, a First Nation should consistently communicate to the Crown why it chooses not to consult or participate. Even if it does participate, the First Nation should try to get some sort of written understanding or even an MOU setting out what constitutes “consultation” such that it satisfies the Crown (or industry’s) legal duties.

5.      First Nations cannot be treated as being one of many interested stakeholders. At the very least, First Nations are entitled to a distinct process and possibly to a more extensive one in terms of consultation. Failure to participate, particularly where no other process is offered, is a proper ground for the First Nations to refuse to consult (subject to the comments in point 4 above on notifying the Crown or industry of why the First Nation is refusing to participate.)

It should be made clear to government and industry that the requirements for consultation will vary from one First Nation to another. For treaty First Nations, the wording of the treaty may dictate some of the issues that must be discussed. The internal workings (political and social structure) of a First Nation will also define the proper persons in the First Nation with whom consultation must be held. While the First Nation should specify the proper representatives for consultation, it is clear that the Crown cannot pick and choose the person(s) with whom it wishes to consult, if it is to satisfy its legal duties.

As an example, for a First Nation focused primarily on fishing herring spawn on kelp, a consultation process which requires that First Nation’s input in late February or early to mid March would be unworkable, as many members of that First Nation would be out fishing. This is also true for other kinds of fishing or hunting – there are certain times of the year when members of the First Nation are focused on food, social, ceremonial and commercial harvesting of resources. The failure of a consultation process to take this into account would not be proper consultation. In other words, the process of consultation must take into account the needs and requirements of both the Crown and First Nations, although accommodation must be made when there is a need to consult which does not fit conveniently within the preferred time frames of the parties involved.

PRE-TRIAL ORDERS FOR CROWN TO PAY FIRST NATIONS’ COSTS IN LITIGATION

An issue has arisen with respect to costs in cases where a First Nation wishes to challenge the lack of consultation on an infringement. We note that in two recent decisions, the British Columbia courts have ordered that the Crown pay “costs” in advance of the trial. Normally, cost awards, which are usually payment of a percentage of the actual legal fees incurred, are awarded only after trial, and usually only to the successful party.

British Columbia (Minister of Forests) v. Jules

This is a case in which certain First Nations are raising their aboriginal rights and title and are challenging the constitutionality and applicability to them of certain sections of the British Columbia Forest Practices Code, the British Columbia Court of Appeal ordered in advance of the trial that the provincial Crown must pay the “costs” of the First Nations. The Court made it clear that the “costs” were the kind of costs contemplated by the Rules of Court. The actual amount of those costs depends on factors such as the complexity of the case and complexity of various pre-trial and trial procedures and steps. Those “costs”, as noted above, very rarely come close to the actual legal expenses incurred in litigation.

The Court said that such “costs” were being awarded or required because of the exceptional nature of the case. The Court referred to this as a “test case” which has public importance to the Province, particularly in relation to the legal interaction between aboriginal rights and title and the ability or inability of the province to pass legislation, such as forestry-related legislation, in the face of those rights and title.

The Court also noted that the Province was initiating the litigation against the First Nations, and that the First Nations had the right to be represented by experienced legal counsel. Because of the special nature of the case and the expertise required, the Court said that this removed the matter from the “realm of ordinary litigation” where costs normally are not assessed until after the trial. Normally, financial hardship is not a proper ground for ordering costs before trial, but it was used as one of the bases for the cost award in this case. The Court also noted that the honour of the Crown was at stake and the discretion of the Court to order costs had to take account of that principle. In short, the Court said that it was unrealistic for the Province to “fold its hands and say that the Bands will have to manage without counsel.”

The Court rejected an alternative argument advanced by the First Nations that they were entitled to funding for the case on the basis of an equality argument under s. 15(1) of the Charter.

Tsilhqot’in Nation v. Canada. (Attorney General/Chief Roger Williams v. Canada et al.)

The above-mentioned decision was followed in another case, Tsilhqot’in Nation v. Canada (Attorney General). In this case, the First Nation is a plaintiffs who is asserting aboriginal title to its territory. In the Jules case, the First Nations were defendants. The case is also referred to as Chief Roger William v. Canada et al. Here, Mr. Justice Vickers of the BC Supreme Court noted that the First Nation had already incurred large fees and that it lacked the financial resources to continue the case. Although a d. 15 Charter argument was also advanced in this case, Vickers J. also rejected those arguments.

Instead, he focused on the issue of “costs” as was done in the Jules case. The defendants, Canada and British Columbia, took the position that the First Nation plaintiffs had to exhaust all available remedies before they would be entitled to a costs Order, including using the public funds available for the B.C. Treaty Process and negotiating within that process.

Vickers J. said that this was a reasonable argument for the Crown defendants to make, and he went on to examine the state of treaty negotiations to see if that argument should succeed. He noted that not a single treaty had yet been concluded within the BC Treaty Process, and more importantly, he referred to “the cloud that now hangs over the entire process” because of the BC Treaty Referendum. In effect, the entire treaty process is called into question because the results and implications of the Referendum are not yet known. He said that it would be “unfair and unreasonable to ask the plaintiffs, who have invested 12 years in the litigation, to engage in treaty negotiations where the situation is “unknown and uncertain.”

Vickers J. said that in the Jules case, the aboriginal people purported to log Crown lands without authorization under provincial legislation. The legal action by the Crown sought to stop that logging. The First Nations, as defendants, raised aboriginal rights and title as defences. In the William case, the Ministry of Forests granted certain forest licences to private companies and the aboriginal plaintiffs commenced the legal proceedings to ensure that no forest-related activities took place on land over which they claim aboriginal rights and title. He said the question of who brings the court action is not a relevant basis upon which to distinguish the two cases, since rights and title were being asserted in both cases in response to Crown activities.

In terms of public importance, Vickers J. noted that the matter before him in the costs application would be the first post-Delgamuukw land claims (aboriginal title) trial. He also noted that this was the first case in which aboriginal trapping rights were being asserted on the basis of the Van der Peet test for proof of aboriginal rights. Another unique feature of the case was the province’s argument in its defence that the creation of reserves extinguished the plaintiff’s aboriginal rights.

Stay Order

It should be noted that on February 21, 2002, Mr. Justice Esson of the BC Court of Appeal granted a stay of the costs order pending the hearing of the defendant Crown federal and Crown provincial’s appeal of the costs order of Vickers J. The main basis of the defendant’s argument was that Vickers J. was wrong to hold that the facts of the William case could not be distinguished from the facts in the Jules case. The Crown(s) argued that, in effect, if Vickers J. was right it would be impossible to exclude any aboriginal land claims case from an order for pre-trial costs to be paid by the Crown.

Esson J.A. noted that the funding in the William case was being sought by plaintiffs rather than defendants. He also noted that the funding order was being made against both Canada and British Columbia, unlike the situation in Jules. Of course, the federal Crown was not named as a party in the Jules case, so it is difficult to see why this was seen as relevant by Esson J.A. Esson J.A. even found that his decision to allow leave to appeal and to stay the funding order would have the effect of the plaintiffs losing their trial date. However, he was concerned that the funding order would be “final” in the sense that once costs were paid, there was no possibility of those costs being “repaid.” In effect, the “finality of the cost” order was deemed to be more important to Esson J .A. than the prospect of the plaintiffs losing their trial date and the various obstacles that have been placed in the way of the plaintiffs over the years.

Implications

1.      On the positive side, it is clear that the courts are open to ordering that some of the “costs” of litigation should be paid by the Crown. On the basis of the cases decided thus far, including the stay pending appeal in William, there is more likelihood of a cost order being made and upheld where the First Nation is required to defend its rights and/or title in court because of quasi-criminal charges or other Crown actions which force the First Nation into court.

2.       Right now, aboriginal title arguments and new aboriginal rights arguments may be seen as “exceptional” in terms of costs orders. Any First Nation wishing to make a costs argument must present evidence showing the unique nature of their claim (i.e. that the subject-matter is unique and has not been litigated before) as well as financial hardship, such as the inability to continue a case without a costs order. It is difficult to know at this point what will be considered “exceptional” in terms of aboriginal rights cases. Moreover, it is difficult to know if the courts will consider future title defences to be “exceptional” once it has agreed that the province should fund one or two such cases. This would have to be balanced against the argument that aboriginal rights and title are fact and site specific and, of course, are unique and specific to each First Nation claiming the right or title.

3.       Although it is difficult to see a principled basis upon which to fund cases where a First Nation is a defendant, but not to fund cases where a First Nation chooses to go to court as plaintiff to assert its rights so as to stop the Crown from giving away its resources, pending the outcome of the costs appeal in Williams, it might be more difficult to secure funding as a plaintiff. The idea appears to be that plaintiffs have the choice to go to court, whereas defendants usually do not.

4.       It should also be kept in mind that a “costs” order will only offset some of the actual costs of litigation incurred by a First Nation. Neither decision holds that all costs, expenses and disbursements will be covered by the Crown.

In closing we wish to reiterate that the law with respect to consultation will, in part, only be as effective as First Nations make it. This powerful legal tool can only be used to benefit First Nations.

1) The same panel of the Court of Appeal that decided the Haida case will hear argument on June 4, 2002 on the issue of whether or not it was proper to extend the duty to consult to third parties.

2 As an example, the “deemed consultation” through aboriginal participation at a commission or watershed level was used by DFO in R. v. Aleck.