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First Nation Challenges Province's Delegation of Duty to Consult

March 10, 2014

By Bruce McIvor

While the Supreme Court has stated that the Crown can delegate no more than the procedural aspects of consultation, the Court has not specified the precise boundary between permissible and impermissible delegation.

The question is important to First Nations across Canada frustrated with companies purporting to 'consult' while being either incapable or unwilling to fulfill the Crown's constitutional obligations.

For example, Ontario relies heavily on mining companies to discharge the Crown's duty to consult and accommodate obligations. I've commented earlier on this aspect of Ontario's new Mining Act:

Our client, Wabauskang First Nation, has raised the issue as part of their challenge to Ontario's authorization of a proposed gold mine in Treaty 3. The written arguments have now been filed:

The hearing is scheduled for Toronto during the week of April 14th.
The case has the potential to clarify the law and create an important precedent for First Nations, industry and governments across the country. 

Bruce McIvor is principal of First Peoples Law Corporation.

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Victor Guerin(6 years ago)
Correct me if I'm wrong, but doesn't Rubicon's factum contradict itself? In part 7, it states that "...the crown may delegate procedural aspects of the consultation process to an industry proponent,..." and then in part 9 it states that "...if there was a breach of the duty to consult, it was Ontario's responsibility, not Rubicon's."
It seems to me that a duty/responsibility can not be delegated to a party that accepts no responsibility for that very duty/ responsibility.

Bruce(6 years ago)
Good point, Victor--we'll see what the Court says about it.

feathers2u(6 years ago)
delegation is a ruse by government to force industry into finacial liability to FN.

Joe de Laronde(6 years ago)
Respectfully, I don`t think Rubicon`s Factum is contradictory. In point 7, it correctly states that while the crown can delegate, the crown STILL HAS oversight to ensure that consultation was indeed effective and fulsome. This point is enforced in point 9....which basically states...if there was an issue in the effectiveness of consultation, it was for Ontario to determine that.

As for delegation being a ruse....there is no impetus on companies to enter into IBA`s or any form of arrangment resulting in liability...unless of course that means the crown determining through its review of consultation that the efforts were `less than`....and directing the company to do `more`.

In reading the Rubicon`s me, that is where this will end up.

Bruce(6 years ago)
Thx for the comment, Joe--it's a good point and goes to one of the key potential problems with delegation; what legal obligation is on a company to do anything substantive to address First Nation concerns?

feathers2u(6 years ago)
curious that the Crown relied on the Wahgoshig case for authority to delegate but the Crowns Factum omits to inform that a subsequent ruling in the case found that Ontario had no authority to delegate its duty to the proponent. Neskonlith vs Salmon arm formed part of that ruling, so far unchallenged.

Ontario knew that the principle of statutory delegation clearly articulated in Neskconlith was absent in Ontario before April 1, 2013 when the amended Mining Act required further permit subject to proponent consultation with FN.

For the record I believe the Ontario Mining Act as amended is Ultra vires and a breach of the SCC, Haida 2004 ruling. "The Crown cannot delegate its duty to third parties".

The Crown is on a very slippery slope to pick the winners and losers on every 16 hectare claim across the country. Hopeless.

Do I have a solution to the sovereignty dilemma, hell no...
but I am sure that race based law is not the answer.

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