DUTY TO CONSULT AND ACCOMMODATE
The duty to consult and accommodate Aboriginal people when decisions are made that may affect their rights, interests or way of life has become a key principle of Aboriginal law, which has resulted in a large and growing body of law.
The Crown has a duty to consult with and accommodate Aboriginal people in respect of decisions that may affect lands to which they are asserting rights, even if those rights have not yet been “proven”. The duty to consult and accommodate Aboriginal people is in fact independent of their substantive Aboriginal or Treaty rights. The duty is both procedural (the Crown must follow the appropriate consultation procedures) and substantive (the Crown must make a decision that accommodates Aboriginal concerns, balancing them fairly with other societal interests).
The duty to consult and accommodate arises when the Crown knows or ought to know that Aboriginal rights or title may exist, and is considering action that may adversely affect such rights or title. To be meaningful, consultation and accommodation has to take place at the level of strategic resource use planning, not just at an implementation level. The courts have also made clear that the threshold for triggering a duty to consult and accommodate is quite low, and that any impact on Aboriginal interests need not be obvious.
The duty applies to both Federal and Provincial governments. The duty to consult and accommodate arises out of the reconciliation of Crown sovereignty with the prior occupation of land by Aboriginal societies, and therefore, according to the courts, there is no obligation on parties other than the government to consult and accommodate. The Crown may, however, delegate procedural aspects of consultation to corporations, as is done in environmental assessments.
Even in the absence of such delegation, as a practical matter, resource development corporations or other third parties may find it wise, from a business perspective, to consult with and accommodate Aboriginal people. Such “third party” businesses have a vested interest in consultation and accommodation being done properly, since if it is not, the approvals on which their projects depend may be quashed on judicial review.
There is a spectrum of consultation activities that may be required, ranging from discussing decisions to be made, up to securing the consent of the relevant Aboriginal group.
At one end of the spectrum of consultation and accommodation are cases where the “claim to title is weak, the Aboriginal right limited or the potential for infringement minor”. In such cases, the duty would amount to a requirement to “give notice, disclose information, and discuss any issues raised in response to the notice”. Even at this level, however, the discussions have to be undertaken “in good faith, and with the intention of substantially addressing” Aboriginal concerns.
At the high end of the spectrum, where the claims are relatively strong, and the potential adverse effects of the decision in question are relatively serious, formal participation in the decision-making process and the provision of written reasons might be required. For serious impacts on proven rights, consent of the Aboriginal group might be required.
Questions of who, precisely, is required to consult Aboriginal people, and which approval bodies are required to consider whether or not the duty has been fulfilled have great practical significance for Aboriginal people. Generally, if a tribunal is granted the power to make a decision, and is empowered to decide questions of law in the course of that, one of the questions it must determine, if asked, is whether or not the duty to consult and accommodate has been fulfilled. On the other hand, a tribunal only has the power to actually engage in Aboriginal consultation itself if it has been expressly delegated that power. That is, the Crown has the duty to consult, which it may or may not delegate to a tribunal. But any tribunal making a decision involving questions of law is required to decide whether or not the Crown’s duty has been fulfilled or not, whoever may have done or not done that. This structure was established by the Supreme Court of Canada in a case called Carrier Sekani in 2010.
In late June 2016, the Federal Court of Appeal, in a split decision, called Gitxaala Nation v. Canada, quashed the approval by cabinet of the Northern Gateway Pipeline, because of insufficient consultation with First Nations. The Court ruled that the decision to approve the project was reasonable from an administrative law perspective, and that it was unobjectionable that part of the Aboriginal consultation was done within the joint process established under the National Energy Board Act and the Canadian Environmental Assessment Act. However, there were gaps in the Aboriginal consultation process that were not covered in either the hearing process nor in the Crown consultation process that followed the hearing process.
Canada had explicitly established a five phase Aboriginal consultation process for the project. The first three phases related to the hearing process, in which Aboriginal groups were encouraged to participate and in which many did. The fourth phase, which the Court considered critical, was consultation by the Crown after the report of the hearing panel, and before the cabinet decision. A fifth phase related to the many specific approvals and permits that would be required if the project went ahead.
The Court considered many possible arguments about the legality of the cabinet decision. It found, for example, that the standard of review for the decision was reasonableness, and that the decision was reasonable in the administrative law sense, given the broad issues of public policy that were involved. The issue of Aboriginal consultation and accommodation, however, required further analysis. The Court interpreted the legislation as giving cabinet the power (and duty) to decide if the Crown’s duty to consult and accommodate had been fulfilled. The Court’s analysis was that the duty had not been properly fulfilled, and that it was not satisfied that cabinet had even considered this issue.
The Court was satisfied that the overall structure of the five phase consultation process was acceptable — the Court thought the Crown had discretion about how to structure this, and had acted reasonably in so doing. The Court also rejected an argument that the process had been “over-delegated” by incorporating some of the Aboriginal consultation into the hearing process. It is acceptable for the Crown to delegate portions of the consultation process. What matters more is that the consultation and accommodation is done, than who does it. The Court did note that the mandate of the hearing panel was significantly narrower than the scope of the Crown’s duty. Here the Court noted that phase 4 of the consultation process featured direct consultations by the Crown, so this was an opportunity to fill gaps left by the hearing process.
The factors relied on by the Court in deciding that the duty to consult and accommodate had not been fulfilled included that: the timing of phase 4 was rushed; First Nations were not provided with information they requested on the scientific assessment of the risks of oil spills and their mitigation; the consultation report inaccurately stated the positions of some First Nations; there was a lack of meaningful dialogue in phase 4 — Canada’s representatives were mandated only to collect information; and Canada would not share its position about the strength of the First Nations’ claims to Aboriginal title.
Given the importance of the particular Aboriginal rights that were claimed and the significance of the potential impacts, the Court thought this was a case that required deep consultation, including reasons that show that Aboriginal concerns had been considered and had made some impact on the final decision. The cabinet decision itself gave only the most passing reference to Aboriginal consultation; the consultation report (on which cabinet presumably relied) was inaccurate at key places; and Canada had invoked cabinet secrecy over what materials were actually before cabinet. Therefore the Court was not satisfied that cabinet had even considered whether or not the duty to consult and accommodate had been fulfilled.
In the result, the Court found that the phase 4 consultation itself had too many gaps, with the result that the Crown’s duty to consult and accommodate had not been met. The Court quashed the cabinet decision, and remitted the matter back to cabinet.
It would seem that the Court is signalling that it is indeed legally possible to make cabinet the final decision-maker, and able to make decisions purely on political and ideological grounds without reference to technical and scientific facts. This indeed was the transparent intent of the 2012 amendments by the Harper administration to the decision making process at issue in this case. However, if decisions are structured this way, it comes with the duty for cabinet to consider matters of Aboriginal consultation and accommodation, and the duty to demonstrate that it has done so reasonably. If Canada continues to shield cabinet discussions with absolute secrecy, it is unlikely that this could be demonstrated.
Canada chose not to seek leave to appeal the decision to the Supreme Court of Canada. It would have been hard to square an appeal with the Liberal government’s professed priority on reconciliation with First Nations. It would also have been hard to square defending the present approval process for pipelines, which affords almost absolute primacy to politics and ideology, with the Liberals’ stated commitment to make evidence-based decisions. Indeed, that process is now under review.
Then, in November 2016, cabinet decided to reject the Northern Gateway pipeline entirely. Perhaps this was intended as a symbol that it was taking reconciliation with First Nations seriously, or as a symbol that it was taking climate justice issues seriously. However, on the same day, cabinet also announced approvals of Kinder Morgan’s Trans Mountain Pipeline and Enbridge’s Line 3 replacement project (running from Alberta to the US). This suggests that perhaps cabinet simply preferred different pipelines instead of Northern Gateway.
NEB cases coming up
In late 2016, the Supreme Court of Canada heard two appeals from the Federal Court of Appeal (FCA) concerning how the duty to consult and accommodate applies to decisions by the National Energy Board (NEB). One was Chippewas of the Thames, and one was Clyde River. The decisions of these two cases in the courts below were flatly contradictory.
As noted above, courts distinguish sharply between the questions of who must exercise the duty to consult and accommodate on behalf of the Crown, and who is required to decide whether or not the duty has been fulfilled. My view is that the NEB does not have the power to consult Aboriginal peoples itself about mattes before it, but it is required to determine whether or not the Crown has fulfilled its duty to consult. Clyde River at the FCA decided that the NEB itself had the duty to consult and accommodate Aboriginal groups, and Chippewas of the Thames at the FCA decided that the NEB had neither the duty to consult nor the duty to decide if the duty had been fulfilled. We will see how the Supreme Court deals with these issues.
In April 2016, the Supreme Court of Canada ruled in Daniels v. Canada (Indian Affairs and Northern Development) that Métis and non-status Indians are “Indians” within the meaning of s. 91(24) of the Constitution Act, 1867.
This decision was widely hailed as a breakthrough for the Métis. Indeed, when the Métis had sought recognition of their rights, they were frequently faced with responses by both federal and provincial governments that the other level of government was the one who had jurisdiction. The ruling in Daniels removed this buck-passing gambit from the Crowns’ toolboxes. Nonetheless, my somewhat skeptical conclusion is that this ruling did not significantly change the law, nor is it likely to be of more than modest practical utility to the Métis. If Métis rights are to be advanced, in my view, it will be through cases that build instead on the 2003 decision of the Supreme Court of Canada in R v. Powley, which was the case that established that Métis communities could have Aboriginal rights.
The word “Indian” has fallen out of favour in general usage and in Aboriginal law in particular, due to objections from those to whom it is intended to refer. “Aboriginal” or “Indigenous” are now the terms in common use. Nonetheless, in Aboriginal law, because the word “Indian” appears in various legal source documents, it is sometimes necessary to use it to convey a precise meaning. This is ironic, since the word “Indian” has different meanings in different legal contexts.
For federal division of powers purposes, s. 91(24) of the Constitution Act, 1867 provides that the federal government has jurisdiction over “Indians and Lands reserved for the Indians”. It was the definition of this use of “Indian” that the Daniels case was about, ruling that Métis and “non-status Indians” were “Indians” in the s. 91(24) sense. It must be emphasized, though, that this is a completely different meaning than the meaning of “Indian” as defined in the Indian Act, which regulates many aspects of life for those to whom it applies. In fact, it is clear that Métis and non-status Indians are not “Indians” in the Indian Act sense.
The legal context for Métis rights includes the landmark case Powley, which established that Métis communities could have Aboriginal rights. That case established a legal test in order to be a right-bearing Métis community: a distinct and identifiable group of mixed ancestry, with their own culture and way of life separate from those of both their Aboriginal and European forebears. An individual could enjoy the rights held by such a community if he or she met the criteria of 1) self-identification as Métis, 2) an ancestral connection to a historic Métis community, and 3) acceptance by the modern Métis community. As we will see, this meaning of “Métis” applies to those seeking to exercise Métis Aboriginal rights under s. 35 of the Constitution Act, 1982 (“Section 35 Métis”), and is different from the meaning of the Métis who are included in the scope of s. 91(24) as “Indians” (“Section 91(24) Métis”).
The Court ruled that Métis and non-status Indians are “Indians” within the meaning of s. 91(24) of the Constitution Act, 1867.
The Court went on to explain that the Métis included in s. 91(24) do not have to meet the test for s. 35 Aboriginal rights laid out in Powley. That is, “Section 91(24) Métis” need not be “Section 35 Métis”. There are far more “Section 91(24) Métis” than there are “Section 35 Métis”. The Court thought that there were people who could not meet the Powley test (for example, because their relationship with their communities had been severed) who should not be presumptively and arbitrarily excluded from federal jurisdiction.
The Court refused to grant additional declarations that had been sought. It refused to declare that the Crown owes a fiduciary duty to Métis and non-status Indians because it considered that to be settled law in light of Delgamuukw v. British Columbia (a decision of the Supreme Court of Canada in 1997) combined with Manitoba Métis Federation v. Canada (a decision of the Supreme Court of Canada in 2013). However, in my view, those cases do not squarely address the issue. Manitoba Métis Federation stated that “The relationship between the Métis and the Crown, viewed generally, is fiduciary in nature”. That much was indeed settled law. However, Manitoba Métis Federation hastened to add that “not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations”, and in fact ruled that the Crown did not owe a fiduciary duty to the Métis in relation to the implementing the Manitoba Act, which was what was at issue in that case. As this illustrates, fiduciary duties do not exist in the abstract, but are tied to specific facts and must be duties to take certain specific and defined actions. So, in asking for a declaration of fiduciary duty without a factual context and without specifying the content of the duty, the plaintiffs in Daniels were asking for something that was too vague and was not legally possible. In my view the Court should have said this, rather than perhaps give the impression that the only reason for refusing the declaration was that it was already settled law.
The Court also refused to grant a declaration that Métis and non-status Indians had a right to be consulted and negotiated with in good faith. Again, the Court thought that this was settled law in light of Haida Nation (a decision of the Supreme Court of Canada in 2004) and Powley. What this obscures is that “Section 91(24) Métis” (in the Daniels sense) is not the same as “Section 35 Métis” (in the Powley sense). As noted above, the Powley test for being Métis is stricter than the Daniels test. The duty to consult, as set out in Haida, is triggered by the potential existence of s. 35 Aboriginal rights or title. For there to be a potential s. 35 Aboriginal right, the Powley test would have to be met, or at least potentially met. So the duty to consult can only apply to Métis communities which at least potentially meet the Powley test. It seems to me that Daniels, rather than suggesting, as it appears to, that obviously the Crown has a duty to consult the “Section 91(24) Métis”, is actually suggesting that the duty to consult only applies to the more narrowly defined “Section 35 Métis”.
The strategy of the Congress of Aboriginal Peoples (the key plaintiff in Daniels) seems to have been to get leverage in negotiations with the Crown by removing the jurisdictional excuses they faced. They indeed succeeded, and convincingly, in clarifying that the federal government has jurisdiction over Métis and non-status Indians. But will this indeed have the hoped-for leverage effect? No doubt it will change what the Métis are told when they seek to negotiate. They will no longer reasonably be able to be told by Canada that they do not fall under federal jurisdiction. But I am skeptical that much more will change, for a number of reasons, despite the Court having stated that deciding the question of jurisdiction would have “enormous practical utility” for the Métis.
Precisely the same issue about the scope of s. 91(24) was dealt with by the Supreme Court of Canada in 1939 (!) in a case called Re Eskimos. The Court unanimously expressed the view, on a reference, that Eskimos (as the Inuit were then called) were included in the meaning of “Indians” in s. 91(24) of the Constitution Act, 1867. Did the federal government then start legislating about the Inuit? No, because having the jurisdiction to legislate does not imply any duty to exercise that jurisdiction. Daniels in fact said this explicitly. So on a strict legal analysis, all that Canada needs do is stop saying “we can’t help you” and change it to “we won’t help you”. Perhaps Canada will find this politically unpalatable to say, especially in light of now having a government which views reconciliation with Aboriginal peoples as a priority. But this factor will be driven far more by a change in political philosophy than by the ruling in Daniels.
Just beneath the surface of the strategy of Daniels is likely the idea that if the Métis were s. 91(24) “Indians”, Canada would have an obligation to treat them equally to First Nations. Indeed, at the trial level in Daniels, Canada argued that this was the “real” object of the litigation, and that the Court should refuse to consider the jurisdictional argument separately from this issue.
If this was the strategy, it was based on two unspoken assumptions: 1) that the comparator groups in an equality analysis had to be under the same jurisdiction, and 2) that the Métis are disadvantaged in comparison with First Nations. In my view the first assumption is untrue and the second is only partly true. The background to this is that First Nation often receive services from Canada that other people receive from provincial governments. While many people seem to assume that First Nations get more than other people in these situations, the opposite is often true.
Both of these questions are illuminated by First Nations Child and Family Caring Society of Canada, a 2016 decision of the Canadian Human Rights Tribunal. In that case, the Tribunal ruled that the level of funding that Canada provided to First Nations child and family services agencies was discriminatory since it did not allow the agencies to provide a level of service comparable to provincial agencies, with the result that First Nations children were more likely to be taken into care than if they received services equivalent to provincial child and family services.
In relation to Métis equality issues, First Nations Child and Family Caring Society of Canada illustrates that being under the same jurisdiction is unnecessary for a successful equality challenge. The whole case turned on a comparison of a service provided by Canada to on-reserve First Nation people with the service provided by provinces to other people. The idea of the need for a “mirror comparator group” was rejected.
Thus, without or with the Daniels decision, the Métis are free to launch equality challenges, if they so choose, based on inequality with First Nations. Rather than turning on issues of mirror comparator groups, such challenges will likely turn on s 15(2) of the Charter, which gives a broad scope to ameliorative programs designed to benefit First Nations.
First Nations Child and Family Caring Society of Canada also illustrates an irony in possible Métis equality challenges based on inequality with First Nations. Equality challenges will not always pull in the same direction. In many ways, First Nations are struggling to obtain services which are substantively equal to those services available to the general public. Generally speaking, the Métis already have access to such general public services. Nonetheless, the Métis are not generally able to try to tailor the social services they receive to their cultural values in the same ways that First Nations sometimes can. Nor do the Métis have access to some services provided by Canada to First Nations which are not provided generally by provinces to those who are under provincial jurisdiction.