What’s ‘duty to consult’ all about?
By Joey Krackle
Note: This summary is based on Dwight Newman’s paper: The Rule and Role of Law: The Duty to Consult Aboriginal Communities, and the Canadian Natural Resources Sector- May 2014
Professor Newman is a Law professor at the University of Saskatchewan and has published a well respected summary of the court rulings on this issue as of May 2014
Specific Issues Involved for Consultation as Ruled by Courts
Question: What Does the Duty to Consult Mean?
Answer: The Duty to Consult as ruled by the Supreme Court in Haida (2004) requires government to take the initiative to consult with First Nations prior to government decisions that might affect Aboriginal or Treaty rights, even when these rights are in question. (Newman p.1)
Question: What does the Duty to Consult provide for First Nations?
Answer: The Duty to Consult provides protection for key Aboriginal interests, and creates a lever to cause First Nations, government, and businesses to come to an agreement over resource projects that benefit all parties. (Newman p.1)
Question: Is the Duty to Consult meaningless as government has the ultimate authority to go ahead with a project, even after consultation has revealed issues to be addressed?
Answer: Governments are legally required to act in good faith and that means that they must take account of the issues identified by communities. (Newman p1)
Question: What do the Courts view as the aim of Consultation?
Answer: The Courts view the aim of consultation as determining if there is an adverse impact on established or asserted Section 35 rights in order to see if it can be mitigated or, if the project can be revised or abandoned.
The Courts’ ultimate aim is reconciliation
Question: Does the Duty provide a veto power to First Nations involved in projects?
Answer: No the courts have consistently ruled that the duty to consult does not provide a veto power to First Nation. (Newman p.1)
Question: Does the Duty involve old treaty breaches?
Answer: No. The courts have ruled that the Duty only applies to new potential impacts of projects. (Newman p.1)
(Note: There could be new impacts from existing projects through modernizations or additions of new facilities)
Question: When is the Duty Triggered?
Answer: The Duty is triggered when the Crown knows or ought to know of an asserted Aboriginal or Treaty right that could be negatively impacted by a contemplated government action. Because natural resources are under the jurisdiction of provinces, they are usually required to exercise the Duty to Consult. (Newman p.9)
Question: How much consultation is required?
Answer: Once the duty has been triggered, the government must carry out consultation to a level determined by further spectrum analysis. The depth of the Duty owed in particular circumstances is determined based on, first, the prima facie strength of Section 35 rights, and secondly the severity of possible impact of government actions. Where the claim is uncertain and its impact is limited, the required consultation is not deep, and it may consist of providing notice to the community with only notice being given with a chance to respond if the community knows of a bigger trigger.
At the medium level, the consultation would involve notice, sharing of information about the project and more substantial opportunities for responses.
At the higher end of the spectrum, where the claim will produce a severe impact, the Duty includes a Duty to accommodate. Accommodation will include a change in the project in the project to lessen the impact, and may involve compensation. (Newman p.9)
Question: What is the role of proponents in Consultation?
Answer: The Supreme Court in Haida ruled that the Duty to Consult only applies to the Crown. The Crown can delegate procedural aspects to proponents. (Newman p.10)
Question: What is the best time for government and industry to engage with affected First Nation?
Answer: Governments and industry who approach First Nations early in the with a request to engage and act in good faith and are open to disclosure find trust and relationships find trust and relationships that help contribute to better outcomes than those following the strict requirements of the law.
All parties can use this relationship to work collaborately on natural resource development that leads to prosperity for all. (Newman p14)
Question: What types of Agreements are possible?
Answer: In early negotiation between industry and First Nations, MOUs can result in a move to further consultation.
Impact Benefit Agreements (IBAs) can effectively seek some ways to lessen the negative impacts and develop a series of negotiated benefits for the community so that the project works effectively and equitably for both parties. IBAs can facilitate employment and training for First Nations, and procurement of goods and services, education, inclusion in environmental monitoring, and potentially direct financial benefits and equity positions which can lead to ongoing revenue streams. (Newman p.13)
Question: What are the benefits for proponents for working with First Nations?
Answer: Stability. Certainty and access for their operation. By respecting First Nation rights. If all parties approach each consultation situations with healthy respect for one another, with good faith in openness to meaningful consultation, those values are more important than minimum legal strictures even though those must be met. (Newman p.15)
Question: How can the use of a spiritual approach on the Duty to Consult lead to better outcomes for all parties?
Answer: The history of the Duty to Consult has worked suggests that those who attempt to draw upon the spirit of the Duty to Consult may have better outcomes than those who attempt to follow the letter of the law or what they see as minimum legal requirements for consultation and accommodation.(Newman p.20)
Mining Issues
- Question: What is the position of the Crown re: the “free entry” policy?
Answer: The free entry policy is present in Ontario. This policy allows prospecting and limited early exploration prior to staking a claim which would be registered automatically without any prior consultation. (Ontario Mining Policy, MNDM, 2012)
- What is the position of the Supreme Court of Canada on “free entry”?
The Supreme Court of Canada upheld the Yukon Court of Appeal decision that the free entry policy did not leave sufficient room for consultation and the Yukon government is changing its legislation. (Newman P.18)
Significance of Ross River Dene Case in Yukon
- Question why is this decision significant to mining?
Answer: The decision appears to change the types of decisions to which the Duty to Consult applies. Previously, the Duty arose when governments made a decision based on a statute. Now, the government is required to change a statute so as to make more room for consultation. This decision sets a precedent for free entry requirements in other provinces. Wider implications could arise from the Duty to Consult regulating legislation and be a step further along the way in its application to the legislative process
(Newman p18)
4. Question: Is it important to include sucessorrship rights in MOUs and IBAs?
Answer: Yes, as without sucessorrship, all First Nation efforts on consultation and accommodation will be lost if the mining company sells its operation.
(Fact well established in law & practice)