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.
The Duty to Consult and Accommodate in the Context of National Energy Board Decisions
The Supreme Court of Canada decided two cases in 2017 concerning how the duty to consult and accommodate should be implemented in the context of National Energy Board (NEB) decisions: Chippewas of the Thames and Clyde River. The lower court decisions in these cases had been flatly contradictory. The Federal Court of Appeal in Clyde River had decided that the NEB itself had the duty to consult and accommodate Aboriginal groups, while in Chippewas of the Thames it had decided that the NEB had neither the duty to consult nor the duty to decide if the duty had been fulfilled.
The Supreme Court of Canada’s decisions turned on the nature of the NEB. It was faced with an argument that the decision in question was one to be made by the NEB, and that since the NEB was not the Crown, there was no Crown decision to trigger the duty to consult and accommodate. This would have meant that by delegating a decision to a regulatory body, and by not being a party to the proceedings before that body, the Crown could effectively make the duty to consult and accommodate vanish. The Court rejected this idea. Rather, the Court, while it acknowledged that the NEB was not the Crown, reasoned that the decision the NEB made was a decision made on behalf of the Crown, and therefore was “Crown conduct” for the purposes of triggering the duty to consult and accommodate.
This is an important result. It soundly rejects the “vanishing duty” theory. This means that any decision made on behalf of the Crown will trigger the duty to consult and accommodate, even if the decision-maker is not technically the Crown or a Crown agent.
The Court went on to decide that the NEB itself had the power to do the consultation and accommodation, based on an analysis of the NEB’s procedural and remedial powers. This is also a significant result, but one that is more focussed on the NEB.
The Court also had occasion to consider cumulative impacts. While it re-affirmed that the duty to consult applied to the particular decision under consideration, and not to historical grievances, it noted that it may be impossible to consider impacts properly without considering the entire context, and thus that cumulative impacts of an ongoing project may inform the scope of the duty to consult. This is another important principle, since there has often been a tendency to view projects in isolation from their context.
The Court came to a different result in the two cases before it, based on the specific facts of the cases. It ruled that there had been sufficient consultation in Chippewas of the Thames, but not in Clyde River. In Clyde River, the Court considered that “deep consultation” was required by the strength of the treaty right and the seriousness of the impacts on it. However, the consultation process had been minimal, did not involve an oral hearing, and did not include participant funding. The Inuit had not even been told that the NEB process would be relied on as consultation. In contrast, in Chippewas of the Thames, the Court considered the risk of impact on the Chippewas’ rights to be “minimal”, and noted the Chippewas had participated in oral hearings, with participant funding. Further, the Court noted a number of accommodation measures that had been put in place to address the Chippewas’ concerns.
In some ways, the processes involved in the two cases were opposite extremes, so the results the Court came to are not surprising. However, no doubt the Chippewas of the Thames found the result disappointing, and there is some force to their argument that a highly formal legal hearing, followed by a final decision by a tribunal, is not a suitable context for nation to nation consultation and accommodation. The Court, however, thought otherwise.
Legislative Steps to Free, Prior and Informed Consent
A legislative process is underway that could clarify and strengthen how Aboriginal rights interact with resource development and other activities, and how consultation and accommodation must be done. In 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) established a standard of “free, prior and informed consent” by Aboriginal peoples before approval of any project affecting their lands, territories or other resources.
In 2016, Canada dropped its opposition and qualifications to UNDRIP, and announced that it supported it and would implement it. There is now a private members bill (C-262) before Parliament that would require Canada to take the steps required to make Canadian laws consistent with UNDRIP and to report annually to Parliament on its progress in this. In November 2017, the federal government dropped its opposition to this bill and announced it would support it. Of course, it remains to be seen when this bill will be passed and what progress will be made under it, but it is a hopeful sign for Aboriginal rights.
Freedom of Religion in an Aboriginal Context
In 2017, the Supreme Court of Canada dealt with freedom of religion in an Aboriginal context in a case called Ktunaxa Nation. At issue was the proposed construction of a ski resort. The area where it was to be built was of great spiritual significance to the Ktunaxa. They believed that the area was inhabited by a Grizzly Bear Spirit central to their beliefs. Near the end of a lengthy consultation process, they disclosed that they believed that if the resort were to be built, the Grizzly Bear Spirit would leave the area and thus make their beliefs and religious practices meaningless. The case was argued both as a freedom of religion case and as a duty to consult case. The Supreme Court ruled against the Ktunaxa.
The freedom of religion argument fits uncomfortably with the way freedom of religion has been viewed historically in Canadian law. Freedom of religion clearly protects against the state enforcing or prohibiting a belief or a religious practice. It also protects against the state imposing burdens on a religious practice. However, it has not generally been employed to require those who do not share a belief to modify their behaviour because of someone else’s belief. Nor has it been employed to protect material things associated with religious practice – those things are governed by property law. For example, if my religious practice requires the use of candles or wine, I have to buy or make these things myself. I am not entitled to say that my religious freedom requires you to provide me with such objects. More expansively, if worshipping in a particular church building is important to a congregation, they need to own (or rent) the building. Their freedom of religion does not require someone else to provide them a place to worship. If the building is owned by someone else, he or she is entitled to tear the building down if he or she wishes.
The Ktunaxa were arguing that this concept of the nature of religious freedom needed to be adapted and expanded in light of the Aboriginal context, in which spirituality and land are more closely linked than in typical European thought. The Court was not willing to go as far as the Ktunaxa asked, because, in my view, of the kinds of considerations noted above.
The Court split 7–2 on how it came to this conclusion. The majority simply reasoned that freedom of religion should not be extended beyond protecting beliefs and practices, which it understood to be non-material.
The minority took a step further. They accepted that in the case of Indigenous religions, where spirituality was deeply tied to the land, a different analysis was called for. In their view, the state action of approving a ski resort would result in the spiritual beliefs and practices of the Ktunaxa becoming meaningless. They accepted that this was an infringement of the Ktunaxa’s freedom of religion. However, they still accepted that it was reasonable to approve the ski resort because the Ktunaxa’s freedom of religion had to be balanced with statutory objectives and with the rights of others. The minority reasoned that giving the Ktunaxa the remedy they were seeking (a ruling that no ski resort be built) would amount to giving them a property interest over the land. They were not willing to do that since that would completely undermine the Minister’s mandate to administer and manage Crown lands. That would also have allowed the Ktunaxa to exclude from the area another Aboriginal group, the Shuswap Indian Band, which supported the ski resort. Therefore, in the minority’s view, allowing the ski resort to go ahead, even if that meant the Ktunaxa’s religious beliefs and practices would become meaningless, was in fact the “minimum impairment” of the Ktunaxa’s freedom of religion that was possible in the circumstances.
Thus, freedom of religion did not provide the Ktunaxa what they were seeking, on either the majority’s or the minority’s analysis. One suspects that the Court did not want to expand the scope of freedom of religion, when it is already facing difficult cases in which competing rights and freedoms come into conflict, such as the pending Trinity Western case.
The Court also rejected the Ktunaxa’s arguments based on the duty to consult and accommodate. The Court did accept that deep consultation was required, and considered that this had been done. There had been a consultation process that lasted over 20 years, and various changes had been made to the proposed development to address concerns the Ktunaxa had raised. However, it was not possible to accommodate the position that the resort not proceed at all. The Court noted that this kind of a veto was not available as accommodation for an asserted right. That would require a proven right.
In the result, none of the Ktunaxa’s legal strategies worked. The reasons do, however, point to what an Aboriginal group needs to do when faced with such a problem. It would have to launch a claim for Aboriginal title or for an Aboriginal right that their spiritual site be left undisturbed. Pending the final resolution of such a case, it would probably have to move for an injunction to protect the site in the meantime. There are demanding evidential burdens for such a strategy, and the Ktunaxa might not have been able to meet these burdens in their particular fact situation. However, this is an available legal strategy that could provide the kind of remedy the Ktunaxa were seeking if such an issue arises elsewhere.
Another Supreme Court of Canada case in 2017 was First Nation of Nacho Nyak Dun v. Yukon. Consultation rights that had been incorporated in a modern treaty were at stake in that case. The Treaty had an elaborate process involving First Nations in the development of land use plans, which, ultimately, were to be adopted by the Yukon government. The Yukon government went through the formal steps, but in the end acted unilaterally in adopting something significantly different than had been discussed by the regional planning body. The Court found this to be a breach of the Treaty, since it had ignored the procedural constraints established by the treaty. The treaty required co-management, and going through the motions and then acting unilaterally was not co-management.
This sounds straightforward, but there have been other cases where governments have simply failed to act in accordance with modern treaties. The reinforcement of the principle that governments must comply with treaties, and that Courts will scrutinize their behaviour if necessary, is timely.
The case turned on some rather complex procedures in the treaty intended to structure the land use planning process in a way that balanced the rights of the parties. At the Supreme Court, the Yukon government in fact admitted that it had not complied with the treaty. The argument focussed instead on what was the appropriate remedy. The Yukon government essentially wanted to start the process over from near the beginning. The First Nation argued that the process should be returned to the point in the process just before the treaty was breached. The Court accepted the First Nation’s position. This had the effect of limiting the options open the Yukon government, based on its earlier conduct in the process. The Court held the Yukon government to the consequences of some of its earlier conduct, rather than letting it do everything over. In my view, this reinforces the idea that the duty to consult and accommodate is not a mere checklist of steps to be taken, after which governments can do whatever they please. Rather, there are real substantive constraints which can emerge from a consultation process.
Another notable feature of this case is what it does not say. After accepting that there had been a breach of treaty, there was no discussion at all about any possible “justification” for this infringement. In my view it is completely appropriate not to consider any “justification” for the breach of a modern treaty. Modern treaties are entered into after lengthy negotiations spanning years or even decades, can be hundreds of pages in length, and are highly detailed and precise. The Supreme Court had said that courts should strive to respect the handiwork of the parties who took such pains to order their affairs precisely. After Aboriginal groups have gone through such a process and agreed to many compromises, in my view the Crown should not then be allowed to say that it can infringe such treaty rights if this is “justifiable”. Were such “justifications” permitted, I suggest that this would reduce the likelihood of ratification of modern treaties if Aboriginal groups had to be advised that the enforceability of the treaty provisions remained uncertain.