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Eric Hovius, J.D. *


Cambridge, Ontario

*Member of the Law societies of Saskatchewan and Upper Canada (Ontario); Graduate of the University of Toronto and the University of Saskatchewan.





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Thinking it Forward: Industry

Thinking it Forward: Honour of the Crown and the Duty to Consult.

A guide for Industry:
     The duty to consult and accommodate is a forward-looking process, that has been designed to minimize the impact of projects, whether undertaken by the Crown or approved by the Crown, in an attempt to avoid depriving Aboriginal communities of their rights that would be later recognized as existing but the actual substance of these rights would be diminished by the development of a project.
     The Supreme Court of Canada has made it clear that “the Crown alone remains legally responsible for the consequences of its actions and interactions with third parties that affect Aboriginal interests”.[1]  The honour of the Crown cannot be delegated.  Third parties are not liable to Aboriginal communities for their failure to adequately consult.[2]  This has resulted in a great deal of unnecessary confusion. 
     Adding to this confusion, Aboriginal communities are not responsible for informing the Crown or third-parties of the legal requirements the Supreme Court set out in the consultation process.  Operationally, the Crown is not a singular entity, and varies immensely in its capacities and its desire to consult with Aboriginal peoples.  I believe there is a practical solution out of this theoretical conundrum.  Dialogue by third parties, or proponents, beginning at a project’s initial inception with Aboriginal communities affected will result in a better understanding of each other’s positions and will ensure that the Crown’s approval process becomes a mere formality. 
     Without dialogue, relationships cannot be forged, and a proposed project will result in unnecessary delays in the early stages of its life-cycle.  As problems within the relationship surface, the Crown’s honour will be tested and various government entities will then emerge and concern themselves with the process.  A process designed to be forward thinking, will become reflective and reactionary.  Defeating the intended purpose of the duty to consult and accommodate. 
     Instead of legal wrangling before a tribunal, board, or court; a project should be inclusive of the Aboriginal communities, creating efficiencies and greater certainty.  Proponents who avoid consultation during the early stages of a project’s development will likely find themselves entangled in the complexities of Aboriginal law, dependent on a case by case basis, where the Crown must extend liberal interpretations to the benefit of the Aboriginal claimant and avoid any appearance of “sharp dealings”.[3]  The avoidance of the appearance of sharp dealings applies to the duty to consult, as a process, itself.  Simply put, proponents that react to this area of law, instead of seeking it out by meaningfully engaging with those they affect, will find themselves in unchartered waters.
     The Supreme Court of Canada has made it clear, Aboriginal peoples should be included within a process where their interests are adversely affected.[4]  The Supreme Court outlines the process under the duty to consult and accommodate, in Haida Nation and applied in Taku River.  The Court found that in the situation facing Haida Nation, the “stakes are huge” with a future settlement of their title claim resulting in the deprivation of the forests which are vital to their economy and culture.[5]  Injunctions brought by the First Nation were found to be inappropriate, because they may offer only partial imperfect relief.[6]
     The source of the duty to consult and accommodate is grounded in the honour of the Crown.[7]   “Canadians need to understand that it is not a distant monarch whose honour is at issue. “Honour of the Crown” in our county, in this age, translates to a matter of national honour, an obligation all Canadians are bound to uphold and respect”.[8]  In Haida Nation, the Supreme Court found “the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim.  To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource.  That is not honourable.”[9]  Adding, “[w]hen the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources change and denuded.  This is not reconciliation.  Nor is it honourable.”[10] 
     A quick glance at the case law, academic articles, and position pieces on the part of government, Aboriginal groups and industry in this area of law since Haida Nation serve to only belabour the point that confusion continues to exist as to who should engage in the process and when.  In some situations, like that of Nova Scotia, the Crown has undertaken a process of consultation with the aim of creating a mechanism that could provide a ‘single window approach’ for proponents engaging in areas that affect Aboriginal interests.[11]  However, instances of one-stop shops are rare, and as a matter of practice, proponents should exercise due diligence ensuring all relevant Aboriginal communities are included within the process.  Even if a single window approach exists, it cannot guarantee the upholding of the Crown’s honour in each specific circumstance. 
     Proponents who recognize early on in their own process as to what the potential impact of their project could have on Aboriginal peoples are likely to receive less delay and incur less cost in their project’s approval process, by forming an inclusive dialogue.  Based on the current state of the law, these delays and costs are foreseeable.  Relationship building should be the primary focus of proponents when planning to develop projects that may have an adverse impact on the exercising of an Aboriginal community’s rights. 
     Although not liable for the failure to consult, the stakes are high for proponents.  Some levels of government have taken steps to outline consultative processes that transfer more responsibility onto the proponents.[12]  Without consultative requirements set out in legislation, proponents may be more inclined to ignore their impacts on constitutionally protected rights.  However, the legal recourse an Aboriginal community can have on the Crown’s approval process can halt a project entirely, even if only a temporary measure used to induce more meaningful consultation.[13]  Therefore, proponents need to become equally educated in the rights held by Aboriginal peoples, and how each of these rights held vary depending on the unique circumstance of the community.  I believe the law has been designed to bind the Crown to the actions of the proponents it approves.  A failure to consult adequately on the part of the Crown or the proponent, transfers no liability, as the project will cease, at the expense of the Crown and the proponent.  Aboriginal rights, held by the community will continue to remain. 
     The Crown is obliged to ensure its honour is upheld.  However, proponents of industry, regardless of the type of proposed project, need to educate themselves as to the legal basis of Aboriginal rights.  Each consultative process is a microcosm of the treaty making process itself.  The process that third parties must engage in should be initially reflective eventually shaping into a cornerstone for relationship building within the area of their proposed activity.  To boil it down into the simplest terms for proponents, a harm done onto the environment will likely adversely impact an Aboriginal community’s rights. 
     A proponent, when beginning to undertake a pre-consultative analysis of their project should understand the basis of Aboriginal rights within Canada.  Royal commission of Aboriginal peoples found that Aboriginal peoples’ rights are “likely to be rooted in particular locations, making reference to particular families and communities. This contributes to a sense that there are many histories, each characterized in part by how a people see themselves, how they define their identity in relation to their environment, and how they express their uniqueness as a people.”[14] 
     Since many recognized Aboriginal rights flow from the pre-contact existence of Aboriginal peoples to the land, it is important for proponents consider their project’s life-cycle’s harm on the environment as a whole.  The adverse affect of a project, from a developer’s perspective, should also exist within two distinct and separate tests.  First, the more geographically wide-scale a project’s impact may have on the environment, the more Aboriginal communities will likely be impacted.  Second, the longer a project’s chronological impact may have on a specific region, the more likely intensive consultations will be required.
     Based on the knowledge requirements set out by the Supreme Court of Canada, third-parties should undertake the initial steps necessary to ensure their proposed project meets the Crown’s requirements as set out under the duty to consult and accommodate.  At the end of the day, it may be the Crown that approves the project, but unnecessary delays caused by contested hearings, injunctions, and appeals can be avoided by ensuring that Aboriginal interests are understood, recognized, and considered.  In the absence of having Aboriginal communities onside, a proponent, although not liable for inadequate consultation, will be the party bearing a majority of the costs.  To avoid these unnecessary risks, a project’s impact during each stage of its life-cycle should be known, and outlined to each affected Aboriginal community.  A constructive dialogue, beginning at the inception of a proposed project and continuing throughout the project, forms an understanding of each position.  It also avoids foreseeable delays.  The Crown’s approval of a project should be a mere formality, when all sides understand each other, and work through the process to achieve mutually beneficial aims.  Without it, projects will be delayed as consultation transforms from a practical means of dialogue garnering local support into one of costly litigation, where the Crown’s honour will be thoroughly tested. 

[1] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para 53.

[2] Ibid., at para 56

[3] R. v. Badger, [1996] 1 S.C.R. 771, at para 41.

[4] Haida Nation, supra note 1, at para 27 and 33, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

[5] Haida Nation, supra note 1, at para 7.  Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74

[6] Haida Nation, supra note 1, at para 14.

[7] Ibid., at para 16.

[8] Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, at para 1116.

[9] Haida Nation, supra note 1, at para 27

[10] Ibid, at para 33.

[11] See: INAC Press Release, August 31, 2010. (http://www.ainc-inac.gc.ca/ai/mr/nr/m-a2010/23403-eng.asp

[12] Mining Act, R.S.I. 1990, Chapter M.14, as amended 2009, c. 33, Sched. 23, s. 1.  Section 140(1)(c).  

[13] Dene Tha' First Nation v. Canada (Minister of Environment), 2006 FC 1354

[14] Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1 (Looking Forward, Looking Back), at p. 33, cited in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para 85.

Last Updated: (October 16, 2010)