Duty to Consult: Court Provides Guidance on Changing Consultation Plans

In Eabametoong First Nation v. Minister of Northern Development and Mines, Ontario's Divisional Court provided guidance on the requirements for changing a consultation plan when consultations are already underway. The Court revoked a permit issued to Landore Resources Canada Inc. (Landore) under the Exploration Plans and Exploration Permits regulation for mineral exploration on the traditional territory of the Eabametoong First Nation (EFN). The Court found the EFN was not adequately consulted before the Minister of Northern Development and Mines (MNDM) issued the permit.

What You Need To Know

• The Court accepted that the MNDM, for appropriate reasons, has the right to change the consultation process, in spite of expectations that may have been created by it or Landore (the MNDM's delegate).
• However, such changes must not compromise the objectives of the duty to consult, which the Court described as "upholding the honour of the Crown by attempting to further the goal of effecting a reconciliation between the Crown and Indigenous peoples."¹
• Such changes, and the reasons for the changes, should be communicated to Indigenous peoples.
• In considering whether the consultation that occurred in this case met the bar of "talking together for mutual understanding," and acknowledging that the duty to consult requires an assessment of substance (not form), the Court found that there was no "real and genuine attempt" by the MNDM or Landore to listen to EFN's concerns, provide feedback about those concerns and discuss ways to meet those concerns, if possible.²
• The Court quashed the exploration permit, and remitted the permit application to the MNDM "pending completion of adequate consultation with [the EFN]."³ It rejected the MNDM's argument that the permit should not be quashed (i.e., that it should be left in place) while the MNDM and the EFN consult further.

Consultation Process

In August 2013, Landore and the Chief of the EFN began to correspond about a drilling exploration program that Landore wanted to undertake during January to February 2014 in the EFN's traditional territory. Both Landore and the Chief expressed their desire to enter into a memorandum of understanding (MOU) before the program started. Landore and the Chief of the EFN met for the first time in December 2013. Following this meeting, on January 14, 2014, the EFN sent the MNDM a letter listing a wide range of concerns with, and the need for further information regarding, the proposed exploration program. Landore and the MNDM later met, without the EFN, to discuss those concerns. They agreed Landore would continue talks with the EFN to establish a MOU.

Landore and the EFN again met on July 7, 2014. Members of the EFN expressed concerns about impacts from prior drilling, as well as the potential impacts that the proposed drilling program could have on fish and wildlife. After this second meeting, Landore and the EFN corresponded sporadically to set up a follow-up community meeting, but neither party communicated a sense of urgency to hold the meeting. On January 3, 2016, Landore communicated with the MNDM that it was urgently requesting a meeting with the MNDM prior to any meeting with the EFN. Unbeknownst to the EFN, the MNDM and Landore met and Landore advised the MNDM that it had entered into negotiations with Barrick and needed its permit approved as soon as possible.

After Landore communicated this information to the MNDM, the MNDM and Landore did not make further attempts to set up a community meeting with the EFN. They also made no further attempts to negotiate a MOU. On February 11, 2016, the MNDM wrote to the EFN and indicated that the MNDM would make its decision about the permit in 10 days based on the available relevant information. The EFN reached out to Landore who indicated that it was not prepared to have another meeting. Within the 10 days, the EFN's counsel wrote to the MNDM expressing, among other things, EFN's concerns with the proposed program and that if the MNDM issued the permit to Landore in the circumstances, the Ontario government would be in breach of the honour of the Crown and its duty to consult.

The MNDM sent the proposed permit conditions to the EFN on March 4, 2016 and imposed a deadline of March 11 to provide comments. The EFN responded on March 11 and explained the EFN's concerns about the permit conditions. The MNDM did not respond, but it later emerged that the MNDM had done an internal analysis of the concerns. The permit was issued on March 31, 2016. At no point was the EFN told why the MNDM and Landore stopped trying to arrange a community meeting, or why the exploration permit would be issued without the EFN and Landore first entering into a MOU.

Court's Analysis

The Court's decision to revoke the permit and remit the application to the MNDM focuses on two key considerations.

1. The Court noted that the MNDM's conduct cannot reasonably be considered to be the type of conduct that would promote reconciliation between Crown and Indigenous peoples. That standard was not met in this case because "the Crown changed course without any explanation to Eabametoong," and it "did so after a series of events that, once they became known, understandably gave rise to the view on Eabametoong's part that the Ministry focus had switched from 'talking together for mutual understanding,' to making sure Landore had its permit in time to engage in discussions with Barrick Gold."⁴
2. The MNDM did not communicate its views to the EFN, which was necessary for "talking together for mutual understanding." The EFN expressed to the MNDM concerns with the proposed program on January 14, 2014 and concerns regarding the permit conditions on March 11, 2016. The Court found that "[w]hen Eabametoong pointed out why those proposed conditions did not address their concerns and why the community meeting they had been told would take place was essential, the Ministry did not reply. It simply issued the permit and made no changes to the conditions."⁵ It was only after the EFN commenced the litigation that the EFN learned that the MNDM had reviewed the concerns expressed by the EFN and made comments on them. The EFN also wanted a MOU before drilling began. However, the MNDM concluded that a MOU was "ldquo;contrary to legal requirements & MNDM policy," but it never communicated this position to the EFN."⁶

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¹ Eabametoong First Nation v. Minister of Northern Development and Mines, 2018 ONSC 4316, para. 110.

² Ibid., para. 120.

³ Ibid., para. 128.

⁴ Ibid., para. 111.

⁵ Ibid., para. 116.

⁶ Ibid., para. 118.

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