The Duty to Consult--A Narrow Vision

By Bruce McIvor

Case comment on Yellowknives Dene First Nation v. Canada, 2015 FCA 148

First Nations across Canada are frustrated with a lack of land use planning and consideration for the cumulative environmental effects of development on their lands. This recent decision from the Federal Court of Appeal exemplifies their concerns and illustrates how difficult it is to get the courts to address them.

What it is about

The Drybones Bay area on the north shore of Great Slave Lake in the Northwest Territories is of great importance to the Yellowknives Dene First Nation. In recent years it has also become the focus of increasing mineral exploration. Local First Nations have repeatedly warned that their Aboriginal and Treaty rights are being eroded due to the cumulative environmental effects of the various projects and a lack of land use planning.

While considering an application for an earlier project, the Mackenzie Valley Environmental Impact Review Board recommended to the federal government that a ‘Plan of Action’ be developed for the area and that it include a cumulative effects assessment and substantial input from First Nations. The federal government rejected the Review Board’s recommendation.

Subsequently, the Review Board considered a mining company’s application for a five-year diamond exploration program in the Drybones Bay area. The Review Board decided the project would not have significant environmental effects and did not require an environmental impact review.

The Yellowknives Dene First Nation’s application for judicial review of the Review Board’s decision was dismissed by the Federal Court. The First Nation appealed to the Federal Court of Appeal.

What the court said

The Court of Appeal rejected the First Nation’s argument that the Review Board had failed to consider the cumulative effects of the diamond exploration program. According to the Court of Appeal, the Review Board had considered potential environmental effects, including cumulative effects, and had concluded it would not have significant adverse impacts because it was largely over water and because the lands had already been disturbed by earlier developments. The Court held that the Review Board’s findings were not unreasonable because they were supported by the evidence and were within the range of possible outcomes.

The Court of Appeal also rejected the First Nation’s argument that the duty to consult and accommodate had not been fulfilled because the Review Board lacked the authority to mandate land use planning in the Drybones Bay area. The Court held that the Review Board’s conclusion that the project was unlikely to adversely affect the environment meant that land use planning was not necessary to accommodate the First Nation’s concerns.

Why it matters

By refusing to seriously consider cumulative effects as part of the duty to consult and by limiting consultation to discrete decisions without acknowledging overall project impacts, governments across the country are sanctioning the piecemeal infringement and extinguishment of Indigenous Peoples’ constitutional rights.

Land use planning that respects Indigenous jurisdiction, knowledge and values would address this serious issue. But, as the Yellowknives decision illustrates, without control over their lands First Nations are dependent on government’s willingness to support First Nation-driven land use planning. Unfortunately, governments either impose their own narrow, self-serving vision of land use planning (Ontario’s Far North Act is an example), or they reject land use planning altogether.

The Yellowknives decision also illustrates the challenges for First Nations in achieving effective results through the courts. When governments follow the minimum procedural requirements for consultation, even if they do not take meaningful steps to address First Nation concerns that arise from the consultation, it is difficult for First Nations to persuade the courts to intervene.

On questions of fact, the courts defer to government decision-makers. They ask whether consultation was ‘adequate,’ whether there is any evidence to support a government decision and whether the decision was in the range of possible outcomes. These are relatively low hurdles for governments to overcome.

As the Supreme Court has stated, the duty to consult and accommodate is a constitutional imperative. It includes an obligation on both provincial and federal governments to engage with First Nations in good faith with the intention of meaningfully addressing their concerns. Until the lower courts consistently apply these principles, many First Nations will continue to be left frustrated and disappointed with the duty to consult. 

Read the full decision.

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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