45. Roughly in parallel with the evolution of the obligation of free, prior and informed consent at the international level, Canada’s courts have developed a robust set of constitutional principles respecting Aboriginal rights, including the duty to consult and accommodate. From the Supreme Court’s 1973 cornerstone Aboriginal rights decision in R v. Calder, through the adoption of s. 35 of the Constitution Act, 1982 giving constitutional protection to Aboriginal and treaty rights, to the cases following the Supreme Court’s 2004 articulation of the modern duty to consult, and if appropriate, accommodate in Haida Nation v. British Columbia, Canadian courts have developed a significant body of jurisprudence regarding Indigenous consultation.
Sources of Aboriginal title and other Aboriginal rights under Canadian law
46. Aboriginal title and other rights arise from one of two sources: treaties with the Crown, or historical practice.
47. From 1701, the British Crown entered into treaties with Indigenous peoples to encourage peaceful relations between Indigenous peoples and European settlers in the lands that would become Canada.85 The Royal Proclamation, 1763 acknowledged the prior entitlements of Indigenous peoples in North America, which “required the Crown to treat with them and obtain their consent before their lands could be occupied.86 Accordingly, the Royal Proclamation, 1763 forbade settlement unless the Crown had first established treaties with the Indigenous peoples in the area.87 In 1996, the Royal Commission on Aboriginal Peoples emphasized this point: “Indian land could be purchased for settlement or development… lands could be surrendered only on a nation-to-nation basis, from the Indian nation to the British Crown, in a public process in which the assembled Indian population would be required to consent to the transaction.88
48. These treaties, and their modern equivalent land claims agreements, often but not always surrendered Aboriginal title to lands in exchange for certain rights over the surrendered lands and the creation of reserves.89
49. However, many treaties did not comprehensively address the division of rights between Aboriginal peoples and the Crown, and the scope and interpretation of others is debated. Much of modern-day British Columbia, Newfoundland, Nunavut, Quebec and Yukon was never subject to Aboriginal treaty.90 The “peace and friendship” treaties of the Maritimes “did not involve First Nations surrendering rights to… lands and resources.91 In 1973, the Supreme Court, in recognition that long before Europeans settled in North America, Indigenous peoples occupied the land in organized, distinctive societies with their own social and political structures, held that those pre-existing Indigenous laws and interests were not automatically extinguished by the Crown’s assertion of sovereignty, but were absorbed into the common law as rights.92 Those rights could only be extinguished by explicit acts of the Crown displacing Aboriginal rights or interests. Unless extinguished, these Aboriginal rights survived colonization and continue to operate.
50. Aboriginal rights that survived until 1982 without being extinguished are now protected under section 35 of the Constitution Act, 1982, which “recognized and affirmed” “existing Aboriginal and treaty rights.&rdquo93 These rights are held by First Nations, Inuit and Métis peoples, and cannot be extinguished.94
51. Whereas courts were previously reluctant to recognize Aboriginal and treaty rights, constitutionalization has given greater weight to their recognition and enforcement. The obligation on governments in Canada to consult and, if appropriate, accommodate the rights and interests of Indigenous peoples has developed through the jurisprudence interpreting section 35 since its enactment. As described below, this obligation differs somewhat in respect of rights that have been claimed but have not yet been proven or settled, and rights that have already been proven or established by treaty.
Aboriginal title and other rights claimed but not yet proven
52. When the government has real or constructive knowledge of the potential existence of an Aboriginal right or title claim, and contemplates conduct that might adversely affect it, a duty to consult the affected Indigenous people and potentially accommodate its interests arises.95 This duty is held by the Crown, and therefore falls on all levels of government in Canada. The level of government implicated in any Aboriginal consultation process will depend on the context in which the need for consultation arises and the jurisdictional authority that level of government exercises.
53. The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably to achieve “the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.”96
54. The honour of the Crown gives rise to different obligations depending on the circumstances. Where Aboriginal rights or title have been asserted, but have not been defined or proven, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims. Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty and define the rights guaranteed by section 35 of the Constitution Act, 1982.97 If a treaty has not been concluded, the Crown must act honourably in the process of defining Aboriginal rights and in reconciling them with other rights and interests. This implies a duty to consult and, if appropriate, accommodate the interests of Indigenous people's where they have asserted rights which have not yet been resolved.98
55. The content of the duty to consult also varies depending on the circumstances. The content of the duty to consult can range from a minimum duty to discuss important decisions where the potential infringement of rights is less serious or relatively minor, through exchanges that are “significantly deeper than mere consultation… required in most cases,” to “full consent of [the] Aboriginal nation… on very serious issues.”99 In all cases, the Crown must act with good faith in the aim of substantially addressing the Indigenous people's concerns.100
56. The degree of consultation required is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title claim, and to the seriousness of the potentially adverse effect on the right or title claimed.101 Where the claim to title is weak, the right limited, or the potential infringement is minor, the only duty on the Crown may be to give notice, disclose information and discuss any issues raised in response.102 At the other end of the spectrum lie situations where a strong case for the claim is put forward, the right and potential infringement is significant to the Indigenous community, and the risk of non-compensable damage is high. In these cases, greater consultation aimed at finding a satisfactory solution is required.103 Consultation in this circumstance may require the opportunity to make submissions, formal participation in the decision-making process from early stages of the project, and provision of written reasons to show that Indigenous concerns were considered and what impact they had.104 The government may also wish to adopt mediation regimes involving impartial decision-makers in contexts involving complex or sensitive issues.105
57. When the duty to accommodate Aboriginal interests arises. Where a strong case exists for the Aboriginal title or right claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing Indigenous concerns may require that steps be taken to avoid irreparable harm or to minimize the effects of infringement until the underlying claim to Aboriginal rights is finally resolved.106 However, this is not a veto for Indigenous peoples, which may only be appropriate in certain cases of established rights.107
Aboriginal title and other rights once proven
58. Aboriginal title and other rights, once established by the courts or treaty, provide the highest degree of control over land. An Aboriginal group’s consent will generally be required unless certain conditions are met, as discussed below.
59. Aboriginal title confers the right to exclusive use and occupation of the land, to reap the benefits flowing from the land, and the right to proactively manage the land.108 The use of Aboriginal title lands is not confined to traditional purposes. However, as a collective right held by the group for present and future generations, the land cannot be put to uses that are incompatible with the collective and ongoing nature of the right. The land cannot be alienated, developed or misused in a way that would substantially deprive future generations of its benefits.109
60. The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.110
61. If the Aboriginal people does not consent to the proposed land use, the government maintains a residual right to infringe the Aboriginal title. Such an infringement is only permitted if justified under section 35 of the Constitution Act, 1982 on the basis that it is necessary for the broader public good.111 This is a stringent test, not easily met.
62. If the Crown chooses to proceed with a measure absent the relevant Aboriginal people’s consent, the government must demonstrate three elements. First, the Crown must have discharged the same duty to consult and accommodate as applies in respect of unproven rights, described above. However, the required level of consultation and, if appropriate, accommodation in respect of a proposed project is greatest where title has been established.112
63. Second, the government’s actions must also be backed by a compelling and substantial objective, considered from the Aboriginal perspective as well as from the perspective of the broader public.113 Courts have been hesitant to limit the range of objectives that can justify infringement in the abstract. While few cases have addressed the issue, the Supreme Court has indicated that a broad range of projects, including commercial ventures and infrastructure developments, could satisfy this factor if the public interest is significant enough.114
64. Third, the government must show that the proposed infringement is consistent with the Crown’s fiduciary duty toward Aboriginal peoples. The Crown’s underlying right in the land is held for the benefit of the Aboriginal group. When the government seeks to exercise this underlying right in a manner that infringes Aboriginal rights, the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. An infringement cannot be justified if it: (a) would substantially deprive future generations of the benefit of the land; (b) would disproportionately infringe the right in a manner that is not rationally connected to the achieve the objective; (c) would cause the right to be infringed more than necessary to achieve the objective sought (minimal impairment); or (d) the benefits of the infringement would be outweighed by its adverse effects.115
65. While this issue has not been explored to the same degree in the context of other established Aboriginal rights, an argument has been raised that the same reasoning in respect of established Aboriginal title may apply to other established Aboriginal rights, depending on the degree to which the rights at issue may be affected.116 If this argument is correct, once Aboriginal rights have been established, the Crown may need to seek the consent of the rights-holding Aboriginal group with respect to uses of land that would substantially impair those rights, or, if consent is not obtained, justify the infringement using the same or a similar infringement analysis to that set out above.117
Consultation and accommodation policies of governments in Canada vary considerably
66. The federal government, all ten provinces, and the Northwest Territories have established Aboriginal consultation policies to implement the Crown’s duty to consult and accommodate. The Yukon and Nunavut, while providing less formal guidance, have not established formal policies. Altogether, these policies vary considerably. Some polices are accompanied by general or industry-specific implementation guidelines.118 British Columbia and Nova Scotia have developed guidance on the role of the business sector in the consultation process.119 Several explicitly address the treatment of Aboriginal title.120 Finally, some policies provide for funding for Indigenous peoples to participate in the consultation process, either from the government or the private sector.121 These policies demonstrate the type of context-specific variation in approaches to fulfilling consultation obligations that could also apply to the application of the principle of free, prior and informed consent.
67. Degree of Specificity: The consultation policies and guidelines of Canada, Alberta, British Columbia, Saskatchewan, Manitoba, and Nova Scotia offer the most detailed and practical guidance about how to fulfill the Crown’s duty to consult. Canada’s guidelines include a “step-by-step, chronological” approach outlining detailed relevant considerations to consultation at each stage.122 Saskatchewan and Alberta’s materials provide consultation matrixes with sample consultation measures, and anticipated timelines for Aboriginal and government responses.123 British Columbia outlines operating guidelines for each stage of the consultation and accommodation process.124 In contrast, the policies of Ontario, Quebec, New Brunswick, Prince Edward Island, Newfoundland, and the Northwest Territories provide broad policy goals and general factors to be considered, but do not provide as much concrete guidance.
68. Some provincial policies, such as those of British Columbia, Alberta, Manitoba, and Ontario, also provide sector- or industry-specific guidelines with consultation guidance tailored to particular contexts.125
69. The policies also differ with respect to the level of detail they provide in describing how to implement the duty to accommodate. Only some policies offer specific examples of types of accommodation.126
70. Prince Edward Island and Nova Scotia have each entered into consultation agreements with the Mi’kmaq and the federal government outlining a preferred, but not exclusive, consultation protocol.127 Certain modern treaties with Aboriginal peoples also provide guidance on consultation processes.128
71. Treatment of Aboriginal title. Some guidance documents explicitly discuss unique considerations in respect of Aboriginal rights or title claims.129 Others seem to approach this topic implicitly. This may reflect the treaty status of a province’s lands. For example, Saskatchewan’s policy excludes Aboriginal title, stating, “The Government does not accept assertions by First Nations or Métis that Aboriginal title continues to exist with respect to either lands or resources in Saskatchewan. Accordingly, decisions claimed to adversely affect Aboriginal title are not subject to this policy.”130
72. Funding for Aboriginal participation in the process. Some governments’ policies require that the cost of consultation for Indigenous peoples be borne by project proponents. For example, the Newfoundland and Labrador policy requires proponents to bear the full cost of consultation. Aboriginal Consultation Levy Act requires proponents to pay to the provincial government levies to be used for grants to Indigenous peoples to participate in the consultation process.131 Other provinces like Manitoba and Ontario have made commitments to funding Indigenous participation themselves.132 Others are silent on this issue.
85 Indigenous and Northern Affairs Canada, “Treaties with Aboriginal people in Canada” (15 September 2010), online: Government of Canada, http://www.aadnc-aandc.gc.ca/eng/1100100032291/1100100032292.
86 Right Honourable Beverly McLachlin, P.C., Chief Justice of Canada, “Aboriginal peoples and Reconciliation,” (2003) 9 Canterbury L. Rev. 240 (“McLachlin, Aboriginal peoples”. See also Calder, supra note 5; R. v. Van der Peet,  2 S.C.R. 507 at para. 110-112 (“Van der Peet”); Delgamuukw v. British Columbia,  3 S.C.R. 1010 at para. 200 (“Delgamuukw”).
87 McLachlin, Aboriginal peoples, supra note 86; See also Calder, supra note 5; Van der Peet, supra note 86 at para. 110-112; Delgamuukw, supra note 86 at para. 200. See also Canadian Charter of Rights and Freedoms, s. 25(2), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The Truth and Reconciliation Commission’s Call to Action 45 calls upon the Government of Canada to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown building on the nation-to-nation relationship set out in the Royal Proclamation of 1763. See Truth and Reconciliation Commission, supra note 4 at 199-200.
88 Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol. 1 (Ottawa: Canada Communications Group, 1996) at 209-210.
89 Jack Woodward, Q.C., Native Law, looseleaf (Toronto: Thomson Reuters, 2016) at para. 5:210.
90 Indigenous and Northern Affairs Canada, “Maps of Treaty-Making in Canada,” online: Government of Canada, http://www.aadnc-aandc.gc.ca/eng/1100100032297/1100100032309.
91 Indigenous and Northern Affairs Canada, “Peace and Friendship Treaties,” online: Government of Canada, https://www.aadnc-aandc.gc.ca/eng/1100100028589/1100100028591.
92 Calder, supra note 5.
93 Constitution Act, 1982, s. 35, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. s. 35.
94 R v. Sparrow,  1 S.C.R. 1075 (“Sparrow”).
95 Haida, supra note 76 at para. 35.
96 Van der Peet, supra note 86 at para. 31; Delgamuukw, supra note 86 at para. 186; Haida, supra note 76 at para. 17.
97 Sparrow, supra note 94 at 1105-1106; Haida, supra note 76 at para. 20.
98 Haida, supra note 76 at paras. 20, 25.
99 Ibid. at para. 24.
100 Ibid. at paras. 41-42.
101 Ibid. at para. 39.
102 Ibid. at para. 42.
103 Ibid. at para. 44.
106 Ibid. at paras. 46-47.
107 Ibid. at para. 48.
108 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at paras. 2, 67, 73 (“Tsilhqot’in Nation”); Delgamuukw, supra note 86 at para. 117.
109 Tsilhqot’in Nation, supra note 108 at paras. 67, 73, 74; 1. Certain treaties give the Crown the right to “take up” additional land. However, there is a point at which taking up additional land would infringe other rights guaranteed by the treaty, because it may not leave enough land untaken to meaningfully exercise other Aboriginal treaty rights; see Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69.
110 Tsilhqot’in Nation, supra note 108 at para. 76.
111 Ibid. at paras. 76-77.
112 Ibid. at para. 79.
113 Ibid. at para. 81.
114 Ibid. at para. 83.
115 Ibid. at para. 87.
116 Jack Woodward, Q.C., Native Law, looseleaf (Toronto: Thomson Reuters, 2016) at para. 5:2360.
118 Government of Manitoba, “Procedures for Crown Consultation with Aboriginal Communities on Mineral Exploration – Mineral Resources Division, Manitoba Science, Technology, Energy and Mines,” online: Government of Manitoba
119 British Columbia Environmental Assessment Office, “Guide to Involving Proponents When Consulting First Nations” (December 2013), online: Government of British Columbia, http://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations/proponents_guide_fn_consultation_environmental_assessment_process_dec2013.pdf; Nova Scotia Office of Aboriginal Affairs, “Proponents’ Guide: The Role of Proponents in Crown Consultation with the Mi’kmaq of Nova Scotia” (November 2012), online: https://www.novascotia.ca/nse/ea/docs/ea-proponents-guide-to-mikmaq-consultation.pdf.
120 See e.g. Government of Nova Scotia, “Government of Nova Scotia Policy and Guidelines: Consultation with the Mi’kmaq of Nova Scotia” (April 2015), online: Government of Nova Scotia, http://novascotia.ca/abor/docs/April%202015_GNS%20Mi'kmaq%20Consultation%20Policy%20and%20Guidelines%20FINAL.pdf (“Nova Scotia, Consultation Policy”)
121 Bill 22, Aboriginal Consultation Levy Act, 1st Sess., 28th Leg., Alberta, 2013 (assented to May 23, 2013), online: Legislative Assembly of Alberta, http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_28/session_1/20120523_bill-022.pdf.
122 Indigenous and Northern Affairs Canada, “Aboriginal Consultation and Accommodation – Updated Guidelines for Federal Officials to Fulfill the Duty to Consult – March 2011” (March 2011), online: Government of Canada, http://www.aadnc-aandc.gc.ca/eng/1100100014664/1100100014675.
123 Alberta Indigenous Relations, “The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management” (28 July 2014), online: Government of Alberta, http://indigenous.alberta.ca/documents/First_Nations_Consultation_Guidelines_LNRD.pdf.pdf; Saskatchewan, Consultation Policy, supra note 118.
124 Province of British Columbia, “Updated Procedures for Meeting Legal Obligations When Consulting First Nations: Interim” (7 May 2010), online: Province of British Columbia, http://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations/legal_obligations_when_consulting_with_first_nations.pdf; (“British Columbia, Updated Procedures”).
125 See e.g. British Columbia, Updated Procedures, supra note 124.
127 Indigenous and Northern Affairs Canada, “Mi'kmaq - Prince Edward Island - Canada Consultation Agreement” (2012), online: Government of Canada, https://www.aadnc-aandc.gc.ca/eng/1344522721221/1344522886022.
128 See e.g. James Bay and Northern Quebec Agreement (1975); Little Salmon/Carmacks First Nation Final Agreement (1997); Nisga’a Final Agreement (1999); Tsawwassen First Nation Final Agreement (2009); Maa-nulth Final Agreement (2009).
129 See e.g. British Columbia, Updated Procedures, supra note 124; Indigenous and Northern Affairs Canada, “Aboriginal Consultation and Accommodation – Updated Guidelines for Federal Officials to Fulfill the Duty to Consult – March 2011” (March 2011), online: Government of Canada, http://www.aadnc-aandc.gc.ca/eng/1100100014664/1100100014675; Nova Scotia, Consultation Policy, supra note 120; Ministry of Northern Development and Mines Ontario, “Consultation and Arrangements with Aboriginal Communities at Early Exploration” (September 2012), online: Government of Ontario, http://www.mndm.gov.on.ca/en/mines-and-minerals/mining-act-policies-and-standards; Interministerial Support Group on Aboriginal Consultation, “Interim Guide for Consulting the Aboriginal Communities” (2008), online: Gouvernement du Québec, https://www.autochtones.gouv.qc.ca/publications_documentation/publications/guide_inter_2008_en.pdf; Aboriginal Affairs Secretariat, “Government of New Brunswick Duty to Consult Policy” (November 2011), online: Province of New Brunswick, http://www2.gnb.ca/content/gnb/en/departments/Aboriginal_affairs/duty_to_consult.html; Government of Prince Edward Island, “Provincial Policy on Consultation with the Mi’kmaq” (3 March 2014), online: http://www.gov.pe.ca/photos/sites/Aboriginalaffairs/file/Provincial%20Policy%20on%20Consultation%20with%20the%20Mikmaq%20-%20Revised%20March%203,%202014.pdf.
130 Saskatchewan, Consultation Policy, supra note 118.
131 Bill 22, Aboriginal Consultation Levy Act, 1st Sess., 28th Leg., Alberta, 2013 (assented to May 23, 2013), online: Legislative Assembly of Alberta, http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/bills/bill/legislature_28/session_1/20120523_bill-022.pdf.
132 Ministry of Northern Development and Mines for Ontario, “Aboriginal Participation Fund” (15 April 2016), online: Government of Ontario
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
© 2017 by Torys LLP.
All rights reserved.