Duty to Consult - Welcome To Canadian Politics!

The duty to consult is a legal principle that plays a significant role in Canadian law, particularly in the context of Indigenous rights and resource development. It establishes an obligation for the government and industry to engage in meaningful consultation with and, where appropriate, accommodation with Indigenous peoples when their rights or interests may be impacted by proposed projects or decisions. Emerging from the recognition and affirmation of Indigenous and treaty rights included in Section 35(1) of the Constitution Act of 1982, the duty to consult “is a statutory, contractual, and common law obligation that the Crown must fulfill before taking actions or making decisions that may have consequences for the rights of Indigenous peoples.” It been applied in various contexts, including natural resource development, land and resource management, and regulatory decision-making, and has become particularly significant in relation to major energy projects, such as pipelines or mining operations, where the potential impacts on Indigenous rights and title are substantial.

Forest in Haida Gwaii (via https://www.flickr.com/photos/druclimb/15490944767).

Key Supreme Court Decisions (2004-2005)

In a series of cases that took place between 2004 and 2005, the Supreme Court of Canada reaffirmed the rights of Indigenous peoples and the duty to consult:

Haida Nation v. British Columbia (Minister of Forests) (Haida Nation). This 2004 case involved the Government of British Columbia granting Weyerhaeuser Company Ltd. the rights to three tree farm licenses without consulting the Haida Nation of Haida Gwaii. At the time, the Haida Nation of Haida Gwaii was involved in a land claim process, and they argued that the licenses to the tree farms meant that by the time the land claim was sorted, their land would be completely cleared of trees. The decision recognized that the Crown has a responsibility to meaningfully consult with Indigenous peoples in decisions relevant to their asserted rights, in ways that are proportional to the size of the project in question and its potential impacts.

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director). In this 2004 case, a mining company in British Columbia sought approval from the government to re-open a mine. Although the Taku River Tlingit First Nation had opposed the re-opening and expressed those concerns in the environmental assessment process, the Government of British Columbia allowed the re-opening of the mine anyway. In a decision rendered the same day as the Haida Nation decision, the Supreme Court found that the engagement with the Taku River Tlingit First Nation had been meaningful, and their concerns addressed, and the responsibility for a duty to consult had been met.

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage). In this 2005 case, the Mikisew First Nation went through several levels of government to prove that the approval of an all-winter road on their territory infringed on their treaty rights. The Supreme Court ruled that because Parks Canada had already moved forward with road paths prior to communicating with the Mikisew First Nation the duty to consult was not met, and the hunting rights of the Mikisew First Nation were violated.

Prior to these cases, consultation was not really seen as an obligation of the Crown, and relevant cases were largely related to failures to consult before the violation of other section 35 rights occurred brought forward by Indigenous nations. What emerged from the three cases that occurred in 2004-2005 however, was the clear obligation of the Crown to consult with Indigenous nations on “any legislative or administrative measures that may affect them.” Further, these cases made the parameters of meaningful consultation and the fulfilling of the duty to consult clear(er):

The Crown must be involved, as the duty to consult lies with the federal government (representing the Crown)
The duty can be delegated to others–provinces or regulatory boards–if they have delegated decision-making capacity
The consultation needs to be proportional to the impact of the project, that is, a hydroelectric dam or pipeline will necessitate much more significant consultations with a wider range of stakeholders than a simple permit for a building. In some cases, the Crown may only be obligated to simply ‘give notice’ to fulfill their consultation duty.

Ongoing Challenges

Implementing the duty to consult has not been without challenges. Issues such as the timing and sufficiency of consultation, the capacity and resources of Indigenous communities, and the lack of clarity in defining the scope of the duty have led to ongoing debates and occasional legal disputes. A Supreme Court decision in 2018 found that there is no duty to consult in the process of drafting and passing law by legislators, even when the law in question will have significant impacts on Indigenous communities. Before, and more clearly, after the judgment, the duty to consult had “only applied to executive actions taken by cabinet and regulators — to the policymaking process“. Limits on the duty to consult and challenges in its implementation are ongoing.

Additional Resources

Contributors: Anahat Thapar, Madeline Lemmon, Maya Hodges, Dallas Tomah, Olivia Blythe, Keiran Odrowski