Update on Duty to Consult Delegation Case

By Bruce McIvor

There has been a lot of interest in my earlier post on Wabauskang First Nation’s challenge to Rubicon Mineral’s closure plan for its Phoenix gold mine project near Red Lake, Ontario, so I thought I’d provide an update.

As explained in my earlier post, one of the main issues in the case is to what extent can government delegate the duty to consult and accommodate. Oral arguments were heard over three days last week before three justices of the Divisional Court in Toronto.

On behalf of Wabauskang, we argued that while government can delegate procedural aspects of the duty to consult, in this case Ontario had gone far beyond and delegated the substantive aspects of consultation including decisions on accommodation measures.

We argued that Ontario had mostly played an oversight role and then made a final decision on the adequacy of the company’s consultation and accommodation. This, we argued, is contrary to the law.

We also argued that because consultation had been delegated to the company, Wabauskang had been denied consultation on important substantive issues including their claim to a treaty right to share in benefits when lands are developed and, as stewards of the land, to share in decision-making about how their lands will be used.

We’ll hopefully have a decision from the Court within three months.

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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