The federal government and provincial governments have a duty to consult with First Nations before taking any steps that may infringe on their Aboriginal or treaty rights. This includes rights that have been established as well as rights that have been claimed.
Understanding Duty to Consult and Accommodate
Once it has been determined that a treaty right exists or an aboriginal right has not been extinguished, the First Nation has the burden of proving that the government action, legislation or development pima facie infringed or interfered with an aboriginal or treaty right in a way that was unreasonable, imposed undue hardship and impeded the exercise of their right. (Sparrow, Gladstone, Adams, Mikisew, Badger). Once a prima facie infringement is established then the onus is on the Crown to demonstrate that the infringement was justified. This justification includes consideration of whether the Crown's actions were consistent with its fiduciary duty, the honour of the Crown and whether the First Nation was consulted (Sparrow, Mikisew, Badger).
The duty to consult and accommodate was expanded to a higher level of consideration with the 1994 Supreme Court decision in Haida. Now the duty to consult and accommodate is triggered once the Crown or a company is contemplating a decision or course of action that may have a negative impact on proven or asserted s. 35 rights. The duty to consult is founded on the honour of the Crown and not necessarily its fiduciary obligation to First Nations (Haida, Mikisew). It is a legal as well as a constitutional obligation based on the principle that in dealing with aboriginal people the Crown must act honourably (Haida, Tzeachten, Rio Tinto Alcan). The objective of this duty is to further reconciliation between First Nations and the Crown and obliges Canada and the First Nations to engage in a dialogue in order to reach a mutually agreeable resolution that protects or mitigates the infringement on s. 35 rights and accommodates Canada's or the company's desired action (Haida, Mikisew, Badger).
Extent of Consultation Duty
The scope of the Crown's duty varies along a spectrum depending on the impact or potential impact on s.35 rights. The duty to consult is the Crown's obligation, whether federal or provincial or a Crown decision maker, and not an obligation imposed on industry (Haida, Brown, Saulteau). What is considered is the strength of the s. 35 rights and severity of the potential impact or harm on the right (Haida). At the lower end of the spectrum the Crown's duty is "to give notice, disclose information, and discuss issues raised in response to the notice." (Little Salmon/Carmacks) At the higher end of the spectrum the Crown will have to engage in more intense consultation with a view to accommodating the First Nation's reasonable concerns (Haida, Little Salmon/Carmacks).
Although the courts have found that consultation does not mean that there is a duty to agree, the consultation, nevertheless, must be meaningful; substantially address the First Nation concerns; be conducted in good faith, with an open mind (that may include modifying or stopping the proposed decision or course of action); initiate consultation early in the process; provide clear notice; share information and permit a reasonable period of time for consultation (Haida, Dene Tha, Mikisew, Musqueam, Homalco).
Impact Benefits Agreements
Although the constitutional duty of consultation lies with the Crown, often the duty arises in situations where the federal or provincial government authorizes a company to engage in an economic activity that has a potential effect on s.35 rights. The courts have sometimes ordered companies to participate in consultation as part of judicial review or injunction applications (Homalco, Platinex). Companies have an interest in ensuring that the Crown fulfils its consultation duty because a failure may impact on their activity. So in order to prevent any conflict or delay in their project companies often provide some or all of accommodation negotiated with the First Nation. This avoids confrontation and secures some economic benefits through Impact Benefit Agreements.
For a more detailed discussion on the duty to consult see Woodward, Native Law, Published by Tompson/Carswell, Chapter 5, Section C.
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