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The Duty to Consult at the Supreme Court in 2017: Part 1—Delegation

January 10, 2018

By Bruce McIvor

In 2017 the Supreme Court released four decisions which elaborated on the substance and application of the duty to consult and accommodate (Clyde River (Hamlet) v. Petroleum Geo-Services, 2017 SCC 40; Chippewas of the Thames First Nation v. Enbridge Pipelines, 2017 SCC 41; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 and Ktunaxa Nation v. British Columbia, 2017 SCC 54).

Based on these four decisions, over a series of posts I will take a stab at summarizing the Court’s current thinking on the duty to consult on specific issues and offer my own thoughts on what it all means for the current status and future of the duty to consult. First up—the delegation of the duty to consult to administrative tribunals.

Background

Governments, provincial and federal, delegate many decisions to tribunals which, like courts, consider evidence and hear submissions from applicants and intervenors before rendering their decisions. Soon after the Supreme Court’s 2004 Haida Nation decision the question arose as what, if any, responsibility did these administrative tribunals have to ensure that the duty to consult is fulfilled.

The first major legal pronouncements on the issue were from the B.C. Court of Appeal in 2009 with Kwitwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68 and Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67. The latter decision was appealed to the Supreme Court and became Rio Tinto v. Carrier Sekani Tribal Council, 2010 SCC 43.

Delegation Principles

In Chippewas and Clyde River the Court, relying on Rio Tinto, confirmed established principles, added further detail and answered outstanding questions regarding administrative tribunals and the duty to consult. The Court explained that:
  • an administrative tribunal’s decision alone may be sufficient to trigger the duty to consult (i.e. a government department’s involvement is not necessary) (Chippewas 30 & 31);
  • the Crown can rely wholly or in part on an administrative tribunal to fulfil the duty to consult (Clyde River 2);
  • an administrative tribunal can be involved in consultation and accommodation and also decide whether the duty has been fulfilled (Chippewas 34);
  • it must be made clear to First Nations that the Crown intends to rely on the administrative tribunal’s processes as part of fulfilling the duty to consult (Clyde River 46);
  • if the Crown intends to rely on an administrative tribunal to completely discharge the duty to consult, the tribunal must have the necessary statutory powers to fulfil the duty (Chippewas 32);
  • the Crown always holds ultimate responsibility for ensuring that consultation and accommodation is adequate (Clyde River 22);
  • when First Nations who are parties to modern treaties consider that an administrative tribunal’s process is inadequate to fulfil the Crown’s duty to consult, they should communicate directly with government and request direct Crown engagement in a timely manner (Clyde River 22);
  • once the duty to consult is triggered an administrative tribunal can only proceed to make a decision if consultation is adequate (Clyde River 39);
  • the central question is whether the administrative tribunal has the required powers in the specific case to fulfill the duty to consult (Clyde River 30);
  • if an administrative tribunal lacks the requisite powers to fulfill the duty to fulfil consult, it should suspend its processes or deny a requested authorization until government has stepped in to meet the outstanding obligations (Clyde River 32); and
  • if the administrative tribunal does not have the necessary powers to fulfil the duty to consult or does not provide adequate consultation and accommodation, the Crown must provide further avenues for consultation prior to any approvals—otherwise the decision can be quashed by the courts (Chippewas 32).

Implications

A few thoughts on the above. First, while the Court referred specifically to First Nations with modern treaties and their right to seek direct consultation with the Crown, there is no reason why the same principle would not apply to all First Nations, including those without treaty or with so-called historical treaties.

Also, there is no reason why this principle should not apply in all situations when the Crown delegates the duty to consult, including when the government delegates the procedural aspects of the duty to 3rd party proponents. In the past, lower courts have failed to accept that First Nations have a right to direct consultation with the Crown (see for example Wabauskang First Nation v. Minister of Northern Development and Mines, 2014 ONSC 4424). The Court’s comments on this issue are important for First Nations across the country who are frustrated with the delegation of the duty to consult and government’s unwillingness to become directly involved.

Second, the Court’s confirmation that an administrative tribunal cannot proceed to make a decision if it lacks the powers to ensure adequate accommodation confirms a principle from Rio Tinto that potentially has wide-ranging application. There is no reason why this principle should not apply in all situations when a government decision-maker contemplates making a decision that triggers the duty to consult. For example, the principle should extend to municipalities which routinely make decisions which trigger the duty to consult. Consequently, the Supreme Court’s reasoning in Chippewas and Clyde River likely undercuts the precedential value of Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379, the leading lower-court decision on the issue of the duty to consult and municipalities.

Finally, the question of whether an administrative tribunal can be involved in fulfilling the duty to consult and ultimately decide whether the duty has been fulfilled has been lurking on the margins of duty to consult law for many years (see for example An Inquiry into British Columbia’s Electricity Transmission Infrastructure & Capacity Needs for the Next 30 Years, Re, 2009 CarswellBC 3637 (B.C.U.C.)). In essence, the Court in Chippewas held that an administrative tribunal can wear both hats because tribunals often carry out overlapping functions while remaining a neutral arbiter. The Court’s reasoning is circular and unconvincing. We should not assume that this is the final word on a thorny and important issue.

Next Week

In Part 2 of this series, I’ll consider what the Supreme Court had to say in 2017 on the issue of accommodation as part of the duty to consult.
 

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation.  Download Bruce's bio.

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Comments
Linda Innes(7 months ago)
interesting information, I am studying Environmental planning and first nations.

Norman Dale(6 months ago)
Very helpful, Bruce, but I remain deeply troubled by the way, especially after Haida Nation v. BC, the discussion has been allowed to focus almost entirely on the adequacy of whatever consultation was used? In contrast, what was indicated in the wording of Delgamuukw (at para. 167) was that in most cases of impactful government decisionmaking, consultation was not enough. In that paragraph, it refers to the "rare cases when the minimum acceptable standard is consultation", then goes on to say "In most cases, it [interaction between the Crown and First Nations] will be significantly deeper than mere consultation." Such thinking is, of course, in line with UNDRIP's repeated reference to the need for "informed consent." How, I wonder, did that mere and rare minimum procedural requirement devolve to mainly debating about whether that has or hasn't been achieved? How did the floor become the roof?

Bruce McIvor(6 months ago)
Thanks very much for your comment, Norma. I agree. How did the floor become the roof, indeed. In a later post I write about the reasonableness and adequacy issues.

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