This is the second part of my review of the development of the duty to consult at the Supreme Court of Canada in 2017. In Part 1 I outlined the Court’s principles underlying the delegation of the duty to administrative tribunals and considered potential implications. Below, I consider the issue of accommodation.
Background
Accommodation is the Achilles’ heel of the duty to consult. First Nations’ frustration with the duty to consult is due to their first-hand experience with endless talk and little action. As long as meaningful accommodation remains elusive and only approached through sustained and dogged effort on the part of First Nations, the duty to consult will continue to sow frustration and cynicism.
Accommodation and Administrative Tribunals
In Chippewas, the Court concluded that on the specific facts before it, the National Energy Board had the necessary statutory powers to impose required conditions on the pipeline company as part of accommodation and, therefore, was able to fulfil the duty to consult (Chippewas 47-48). The implications of the Court’s narrow and specific conclusion on this point is important for companies, the NEB, other administrative tribunals and First Nations.
Contrary to the assumptions of many commentators, Chippewas is not a wholesale endorsement of the NEB’s processes and ability to discharge the Crown’s duty to consult. Depending on the facts of other projects and the required depth of consultation for those projects, the NEB might not have the necessary statutory powers required to accommodate First Nations. When such a case arises, the law is clear: the NEB will not be able to make a decision until the federal government steps in and fulfills the Crown’s outstanding constitutional obligations (see Part 1 of this series).
This principle applies to all administrative tribunals (and logically to all government decision-makers). Before making a decision they must correctly gauge the required depth of consultation for a specific project, decide on the necessary accommodation measures (if any) and ensure that either they have the statutory powers to realize the required accommodation or that government does so through a parallel process. Until these steps are taken, they cannot make a decision.
Accommodation and Balancing of Interests
One of the central problems with the duty to consult and accommodate is that all too often the focus is on consultation, not accommodation. With varying success, First Nations fight hard to secure meaningful accommodation through negotiations. One of the challenges they increasingly face is the argument that their rights must be ‘balanced’ with the wider public interest.
In 2017 the Court reiterated two important points on this issue. First, neither broader economic interests or the public interest trumps the Crown’s obligations to consult and accommodate First Nations. If the duty to consult is not fulfilled, a project cannot be in the public interest. Second, because unproven and unrecognized Aboriginal rights do not give First Nations a veto as part of the duty to consult, the Crown and its agents are under a special responsibility to accommodate First Nations (Chippewas 59-60 and Clyde River 40.)
In regards to the veto question, in 2017 the Court reiterated an important point it made over 20 years ago in Delgamuukw and which governments and companies too often overlook. When consultation is based on a First Nation’s unproven, unrecognized claims the First Nation does not have a veto. But, in certain cases First Nation consent might be required when the duty to consult is triggered by proven claims (Ktunaxa 80).
Reasonableness and Accommodation
For First Nations who succeed in forcing meaningful accommodation negotiations, the question quickly arises: how strong is their negotiation position? In Ktunaxa the Court went further than in any previous decision in emphasizing the importance of First Nations not taking ‘unreasonable’ positions.
The Court criticized the Ktunaxa for taking what it described as an uncompromising and absolute position that left no room for negotiation and accommodation and warned First Nations against taking “unreasonable positions” (Ktunaxa 11-43, 80).
There are two obvious problems with the Court’s reasoning. First, why should one party in negotiations get to undermine and dismiss the position of the other party by simply labelling it ‘unreasonable’?
Second, and most importantly, applying a reasonableness test to a First Nation’s demands for accommodation would drastically narrow the scope of the duty to consult. It would exclude the most serious infringements and intractable disputes from the duty to consult and limit the duty to addressing impacts on First Nation rights that can be readily accommodated. This cannot have been the Court’s intention in Ktunaxa.
A final word on reasonableness. The more the Court narrows the duty to consult by relying on concepts of ‘adequacy’ and ‘reasonableness’ the further the Court drifts away from its earlier descriptions of the duty as a constitutional imperative that must be met. By the time duty to consult is twisted and contorted based on ‘reasonableness’ and ‘adequacy’, the duty becomes a pale shadow of the Court’s lofty rhetoric. If the Court continues to undermine the scope and effectiveness of the duty to consult for unproven and unrecognized rights, First Nations will increasingly choose to litigate in order to establish their rights instead of wasting their time consulting over unrecognized rights.
Next Week
Next week I’ll wrap up this series on the duty to consult by considering a range of issues including remedy, procedure and existing infringements.
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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