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Paula Boutis
Indigenous rights and the duty to consult

| January 31, 2013
Indigenous rights and the duty to consult

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On January 8, 2013, Frog Lake First Nation and Mikisew Cree First Nation, through their respective Chiefs, launched judicial review cases in the Federal Court. They are challenging the passage of the now infamous federal government omnibus budget bills, Bill C‑38 (Jobs, Growth and Long‑term Prosperity Act, S.C. 2012, c. 19); and Bill C‑45 (Jobs and Growth Act, 2012, S.C. c.31).

Other Canadians who may oppose these bills can only express their displeasure with them at the ballot box. With Canada's first‑past‑the‑post electoral system, and a significant fracturing of the centre and centre‑left, it seems like an uphill battle for the rest of the country to challenge these laws, widely considered to be anti‑democratic. For all the efforts of multiple environmental organizations and the actions of the opposition in the House of Commons (perhaps most poignantly, member of Parliament Elizabeth May), there's not a whole lot the rest of us can do.

Enter, First Nations.

First Nations have some powerful tools at their disposal. Chief among them is a concept known as the "duty to consult," owed by the Crown to its First Nations. The duty to consult arises as a corollary of section 35 of the Constitution Act, 1982. The Crown must act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. Not only is a duty to consult implied, but accommodation may also be appropriate.

There are several aspects to this. First, when does the duty arise? If the Crown is aware that there is an Aboriginal right or title that may be adversely affected by some conduct, then the duty arises; for example, if treaty rights may be impacted. The threshold for the duty to consult is not high.

Second, there must be a causal relationship between the conduct complained of and the Aboriginal right being affected. Even high‑level management decisions or structural changes to resource management can qualify. There is no need to demonstrate immediate impact on First Nations lands and resources. It is enough that those structural changes may cause direct impacts later. 

Third, what does the Crown have to do to meaningfully consult with First Nations? As is typical of the law, what is appropriate will vary with the circumstances. It has to be proportionate to the strength of the case supporting a right or title, and the seriousness of the potentially adverse effect claimed. "Deep consultation" may be required where the risk of non‑compensable damages is high. This may mean accepting submissions for consideration, formal participation in the decision‑making process, and provision of written reasons to show that concerns were addressed and to reveal the impact of those consultations on the decision. 

The Supreme Court of Canada has looked to the New Zealand Ministry of Justice's Guide for Consultation with Maori for guidance. Genuine consultation, notes the Court, includes "seeking Maori opinion on… proposals" and "being prepared to alter the original proposal."

This brings us back to the cases launched by Frog Lake and Mikisew First Nations. Both have entered into treaties with the federal Crown. In both cases, the First Nations complain of the government's failure to properly implement those treaties after they were signed. However, things turned around with the passage of the Fisheries Act, Navigable Water Protection Act, the Canadian Environmental Assessment Act, and the Species at Risk Act.

The Frog Lake and Mikisew First Nations contend that these Acts created protection over the lands governed by the treaties, or at least required Canada to take an active role in the assessment of any development that could have an adverse effect on the environment. In addition, through these Acts, a formal mechanism and framework exists for consultation.

All this has changed. With the passage of the omnibus budget bills, dramatic changes have occurred, significantly reducing the scope and nature of the federal government in assessment and management of resources in Canada, including on the territories of Mikisew and Frog Lake. With less involvement by the federal government, the implication would seem to be significantly reduced consultation with First Nations for development affecting their lands.

Frog Lake and Mikisew take the position that the federal government did not meet its duty to consult, and "knew or ought to have known that the new environmental policy would significantly and adversely affect the assessment of how proposed development will impact treaty harvesting rights and how those impacts are accounted for in the planning and conduct of such development.  … [they] knew or ought to have known that the new environmental policy would … significantly reduce the degree to which … First Nations could consult with Canada."

Frog Lake and Mikisew seek a remedy which "gives meaningful and substantive relief… designed to require Canada to ensure that it maintains its ability to properly carry out and perform the terms of the Treaty … to the extent possible using Canada's legislative and executive powers." 

While the rest of us wait for our next opportunity at the ballot box, our First Nations friends may well succeed in the courts.

Jessica Weizenbluth, student‑at‑law with Iler Campbell, assisted in the preparation of this article. Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.

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Comments

I find this analysis confusing.

First of all, there is no "section 35 of the Charter". The Charter of Rights and Freedoms ends at section 34 of the Constitution Act, 1982. The correct reference should be to Section 35 of that Act.

Second, the Frog Lake and Mikisew Cree First Nations signed treaties with the Crown. It is unclear whether it is alleged that the existence of those treaties has any effect on the duty to consult, beyond the duty that has been found by the courts to be implied in s. 35 of the Act.

Third, the Frog Lake and Mikisew Cree seem to have derived some comfort from the existence of the Fisheries Act, Navigable Waters Protection Act, the Canadian Environmental Assessment Act, and the Species at Risk Act. It is not clear from the above memorandum whether they allege that those acts created any additional duty on the Crown to consult beyond that which is implied under s. 35.

Fourth, it seems to be alleged that the effects of the recent passage of the "omnibus" amendments to those acts are either to reduce the Crown's duty to consult, or to give the federal government excuses to ignore the duty to consult. Or, possibly, to impair the government's ability to consult.  Further explanation would have been helpful.

Fifth, it is unclear whether the judicial review application seeks to strike down the omnibus amendments because they were passed without consulting with the applicant First Nations, or because the amendments themselves somehow weaken the s. 35 duty to consult in respect of future matters yet to arise.

Is this case solely about the duty to consult, or does it advance other grounds (e.g. specific treaty rights) for judicial review?

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