2. Format
THE BASICS – BACKGROUND
BEYOND THE BASICS - QUESTIONS THAT NEED ANSWERS:
1. Does Canadian law support Prior Informed Consent for Aboriginal
Peoples?
2. Does Consent only mean “veto”?
3. Do standard public consultation processes satisfy the duty?
4. Will the “streamline” legislation prejudice the Crown's ability to
fulfill the duty?
5. Can the procedural/operational aspects of the duty be delegated
to third parties?
6. Can courts require third parties to negotiate with First Nations?
3. THE BASICS
• “Whether the Aboriginal group has been
consulted” is a factor of the justifiable
infringement test – Sparrow - 1992
• Duty to consult has a spectrum: mere
consultation, deeper more than mere and
consent – Delgamuukw - 1997
• Source of the duty to consult Aboriginal Peoples
is the honour of the crown – Haida - 2004
4. THE BASICS
• The broad purpose of the duty to consult is process
of fair dealing and reconciliation between the
Crown and Aboriginal peoples – Haida – 2004
• For asserted but unproven rights, the purpose of
the duty to consult is to protect these rights from
irreversible harm as the settlement negotiations
proceed – Rio Tinto - 2010
• For proven rights, the purpose of the duty to consult
is to fill any procedural gaps in the treaty -
Mikisew – 2005 & Little Salmon – 2010
5. THE BASICS
• The duty to consult arises when
• The Crown has real or constructive knowledge of
the potential existence of the Aboriginal right or title;
and
• The Crown contemplates conduct that might
adversely affect that Aboriginal right or title (Haida)
• Consultation after the fact does not satisfy the duty, it
must occur prior to the proposed activities
(Ross River, Solid Gold)
6. FPIC
Does Canadian law support Free Prior
Informed Consent?
YES
• Prior – consultation must occur before adverse
impacts to protect and preserve Aboriginal Title
and Rights
• Informed – minimal standards require
communication of applicable and relevant details
for informed understanding
7. …
• Consent – origin in Delgamuukw
• Haida stated where “asserted and
unproven” consent would not be available
• When Aboriginal title or right is “proven
and established” by judicial affirmation or
Government-to-Government agreement,
consent may be a legal requirement
8. Veto
Does “consent” only mean veto?
NO
• Consent means “mutual consent” – only mutual
consent is consistent with the purpose of reconciliation
• Government to government agreements represent a
form of mutual consent
• Impact Benefit Agreements where the First Nation
supports a project may reflect mutual consent
9. Standard Public Consultation
Do standard public consultation
processes satisfy the duty?
NO
• In Mikisew standard public notices and open houses which
were given were not sufficient – entitled to a distinct
consultation process
• Court also said that a consultation process that does not
contemplate accommodation is flawed
• The Joint Review Panels do not have the legal authority to
accommodate, they will not likely satisfy the duty to consult
10. Streamlining Consultation
Will the proposed “streamline” legislation prejudice
the Crown's ability to fulfill the duty to consult?
YES, IF…
• The legislation shortens time frames disallowing adequate consultation with
Aboriginal Peoples
• Failure to fulfill the duty to consult will be considered an unjustifiable
infringement of Aboriginal Rights and the legislation may be written down
NO, IF…
• The legislation includes Aboriginal consultation as a distinct process and
allows for accommodation of specific First Nations
• No legislation is above the Canadian Constitution or the rule
11. Delegation of Consultation
Can procedural/operational aspects of
the duty be delegated to a third party?
YES
• While the ultimate legal responsibility for fulfillment of the duty
to consult resides in the Crown, its operational aspects can
be, and often are, delegated to those third parties directly
involved in the day-to-day resource development projects
(Solid Gold);
• Furthermore, industry proponents may be liable for their
failure to consult (Platinex, Taseko Mines Ltd)
12. Court Ordered Consultation
Can courts require third parties to
negotiate with First Nations?
YES
• In Platinex and Solid Gold, the court ordered
the parties to negotiate with one another
• Not clear who is supposed to pay for First
Nations to participate in such negotiations
