#9151 - Duty To Consult - Aboriginal Law

Duty to Consult

Summary, Scope, Origins (Haida)

-arises from special rels bw Fn and Crown > honour of Cr; RP, honour of Cr, reconciliation (Haida; Mikisew)

-arises w any Cr entity (both fed and prov) when it has knowledge of rights engaged (Haida; St. Catherines)

-Delgamuukw: consultation and accommodation is part of justification for infringement

-broad- incl treaties, legislation; not ltd to specific projects- can be applied to higher level decisions

-duty is to engage in meaningful consultation with intention of substantially addressing FN concerns

-no reqmt for consensus, but reqmt for substantive neg in GF, no sharp dealings, but hard bargaining is ok (Haida)

-FN: have duty to act in GF, not frustrate process, not take positions that preclude Cr duty (Heltsiuk; Mikisew)

- duty doesn’t extend to past harms (Rio Tinto)

-live issue for commercial interests- but doesn’t explicitly apply to them (Haida)

-generally involves small, isolated communities, overwhelmed admin bodies- need for expansive duty to address power imbalance

-context: lots of development currently in BC

-can include accommodation > supposed to follow meaningful consultation (Haida)

-displacement of FD and more rigorous of Sparrow requirements (Peeling)

-only applies where there is proven rights and title, e.g. on reserve- troublesome; live area of the law and on the ground (Peeling)

-duty is supposed to give rights, but may not actually be (Peeling)

Approach (Haida):

-context specific

-spectrum or proportional approach

-aims to uphold honour of the crown

-shouldn’t be applied narrowly or technically (Taku)

Test (Haida):

1. Does the duty to consult exist? Has it been triggered? (Rio Tinto)

1. Crown has knowledge real or constructive of aboriginal right/title

-includes awareness of past occupation

2. Crown is contemplating activity that will adversely affect?

-e.g.: right/title in Haida; title in Taku

3. The strength of the claim (real or constructive knowledge?)

-Mikisew modifications> if it is a treaty right:

-specificity of promise in treaty

-history of dealings

-existing framework:

-in treaty: taking up land = procedural rights, promise to ‘hunt as before = substantive rights

-example where duty did not arise:

-RioTinto Alcan: although there was a prior and continuous breach, duty to consult would only arise if there is a possible novel breach

-analysis: contradicts Haida, suggests that trigger for duty is narrowed

2. What is content of the duty?

-depends on context, can include full consent but need not (no reqmt for inherent consent pending a rights or title claim)

-objective is meaningful consultation:

-consultation must balance FN concerns w potential societal impact of decision on asserted right or title

- may cause Cr to make changes to proposed action> may give rise duty to accommodate

-govt should not adopt an unstructured admin regime which risks infringing rights

-3^rd parties do not have duty, but can have procedural aspects

-good faith required on both sides

-spectrum or continuum approach: proportional, based on 3 factors:

1. the strength of the claim-proven or asserted right

2. inherent limits, e.g. geographical, temporal

3. degree of infringement

-geographical issues, is infringement compensable, centrality of right/title to the claimant

- low end-claim is weak, limited right, or minor infringement = duty to give notice, disclose information & discuss issues raised in response to notice

-high (deep) end of consultation - claim is strong, central and integral right, substantial, central infringement (centre of territory etc…) = opportunity to make submissions, formal participation in decision making process & provision of reasons

3. Has the duty been discharged?

-was there meaningful consultation?

1. did consultation occur?

2. what is the scope and extent of the duty?

3. was there an appropriate opportunity to consult (time)?

4. what does the...