Good News for the Duty to Consult

By Bruce McIvor

The duty to consult and accommodate isn’t a blunt instrument.

For it to work First Nations and government must be willing to participate in an open process of information sharing and honest listening. They must make good faith attempts to negotiate effective and responsive agreements.

Too often governments fail to live up to their end of the bargain.

Instead of meaningful engagement, they smother First Nations with hollow procedural niceties. Rather than work on solutions, they work on developing their consultation logs.

Most First Nations caught in a duty-to-consult house of mirrors have little recourse. They lack the resources to take governments to court. Those that manage to muster a legal challenge often face another obstacle—judges with a restricted view of government’s obligations to consult and accommodate First Nations.

Over the last year several court decisions have offered a welcomed corrective to governments’ and judges’ often narrow vision of the duty to consult. This can be seen most clearly in decisions focused on the question of what specific government action or decision making triggers the duty.

Skip Ahead if Case Law Bores You

In Huron-Wendat Nation, the Federal Court was faced with a challenge to an agreement-in-principle (AIP) between Canada and Innu First Nations. Applying a generous and purposive approach to the question of whether the duty to consult had been triggered by the AIP, the Court concluded it was obvious the AIP had an inevitable impact on the Huron-Wendat and therefore Canada should have consulted them before it was signed.

Similarly, in Courtoreille, Mikisew Cree First Nation’s challenge to the Harper government’s first and second omnibus bills, the Federal Court held that while Mikisew Cree had not demonstrated any actual on-the-ground harm to Aboriginal rights due to the legislation, a reasonable person would recognize the potential risk. This was sufficient to trigger the duty to consult and accommodate.

While the Federal Court of Appeal in Hupacasath dismissed a challenge to Canada’s foreign investment promotion and protection agreement (FIPA) with China, it endorsed a generous and purposive approach to the question of when the duty to consult arises. The Court emphasized that the duty is intended to prevent a present, real possibility of harm caused by government’s dishonourable conduct. If a government agreement, such as a FIPA, raised the prospect of a future decision and it was possible to estimate the probability of that decision adversely affecting Aboriginal rights, the agreement would trigger the duty to consult.

The most pointed recent rejection of a narrow view of the duty consult is found in the British Columbia Court of Appeal’s Chartrand decision. Faced with the lower court’s approval of the provincial government’s refusal to consult with the Kwakiutl First Nation about its unrecognized Aboriginal title and rights on Vancouver Island, the Court of Appeal went back to well established principles. It faulted the lower court for taking a restricted view of the duty to consult and reminded the province that to uphold the honour of the Crown its processes must demonstrably promote reconciliation.

The Quebec Court of Appeal’s criticism in Corporation Makivik of the provincial government’s failure to adhere to the spirt and intent of the James Bay Agreement similarly emphasized that the duty to consult cannot be reduced to mindless procedures. For it to be meaningful, government must engage with First Nations with a “sufficiently open mindset.”

The Federal Court of Appeal struck a similar note in Long Plain, its review of the federal government’s process for selling the Kapyong Barracks in Winnipeg. The Court criticized Canada for taking an overly narrow, technical review of its obligations. Government consultation, said the Court, must be imbued by honour, reconciliation and fair dealing.

Back to the Interesting Stuff

Too often governments and the courts lose sight of the special place of the duty to consult in Canadian law. Recent court decisions reminding us all of the broader principles and purpose of the duty to consult and accommodate are an important corrective.

As the British Columbia Court of Appeal noted in Chartrand, when a government decision is challenged on the basis of the duty to consult, the courts should not simply ask whether the decision was fair. More importantly, the courts must ask whether government by its conduct has actively sought to promote reconciliation.

This demanding standard is necessary because the duty to consult is not simply an administrative requirement—it is a constitutional imperative. The more often government decision-makers recognize this higher obligation, and courts enforce it, the closer we will come to recognizing and respecting Indigenous Peoples’ central legal, historical and future place in Canadian society.

Court decisions referred to:

Canada v. Long Plain First Nation, 2015 FCA 177
Chartrand v. British Columbia, 2015 BCCA 345
Corporation Makivik c. Québec (Procureure générale), 2014 QCCA 1455
Courtoreille v. Canada, 2014 FC 1244
Hupacasath First Nation v. Canada, 2015 FCA 4
Huron-Wendat Nation of Wendake v. Canada, 2014 FC 1154

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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