In 2017 the Supreme Court released four decisions that elaborated on the substance and application of the duty to consult and accommodate: Clyde River (Hamlet) v. Petroleum Geo-Services, 2017 SCC 40; Chippewas of the Thames First Nation v. Enbridge Pipelines, 2017 SCC 41; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58; and Ktunaxa Nation v. British Columbia, 2017 SCC 54. Based on these four decisions, below I summarize the court’s thinking on the duty to consult on specific issues and offer my own thoughts on what it means for the present and future regarding the duty to consult.
Governments, provincial and federal, delegate many decisions to tribunals which, like courts, consider evidence and hear submissions from applicants and intervenors before rendering their decisions. Soon after the Supreme Court’s 2004 Haida Nation decision, the question arose as to what, if any, responsibility these administrative tribunals had to ensure that the duty to consult is fulfilled.
The first major legal pronouncements on the issue were from the BC Court of Appeal in 2009 with Kwikwetlem First Nation v. British Columbia (Utilities Commission) and Carrier Sekani Tribal Council v. British Columbia (Utilities Commission). The latter decision was appealed to the Supreme Court and became Rio Tinto v. Carrier Sekani Tribal Council, 2010.
In Chippewas and Clyde River, the court, relying on Rio Tinto, confirmed established principles, added further detail and answered outstanding questions regarding administrative tribunals and the duty to consult. The court explained:
First, while the court referred specifically to First Nations with modern treaties and their right to seek direct consultation with the Crown, there is no reason why the same principle would not apply to all First Nations, including those without treaty or with so-called historical treaties.
Also, there is no reason why this principle should not apply in all situations when the Crown delegates the duty to consult, including when the government delegates the procedural aspects of the duty to third party proponents. In the past, lower courts have failed to accept that First Nations have a right to direct consultation with the Crown (see, for example, Wabauskang First Nation v. Minister of Northern Development and Mines, 2014). The court’s comments on this issue are important for First Nations across the country who are frustrated with the delegation of the duty to consult and government’s unwillingness to become directly involved.
Second, the court’s confirmation that an administrative tribunal cannot proceed to make a decision if it lacks the powers to ensure adequate accommodation confirms a principle from Rio Tinto that potentially has wide-ranging application. There is no reason why this principle should not apply in all situations when a government decision maker contemplates making a decision that triggers the duty to consult. For example, the principle should extend to municipalities, which routinely make decisions that trigger the duty to consult. Consequently, the Supreme Court’s reasoning in Chippewas and Clyde River likely undercut the precedential value of Neskonlith Indian Band v. Salmon Arm (City), 2012, the leading lower-court decision on the issue of the duty to consult and municipalities.
Finally, the question of whether an administrative tribunal can be involved in fulfilling the duty to consult and ultimately decide whether the duty has been fulfilled has been lurking on the margins of duty-to-consult law for many years. In essence, the court in Chippewas held that an administrative tribunal can wear both hats because tribunals often carry out overlapping functions while remaining a neutral arbiter. The court’s reasoning is circular and unconvincing. We should not assume that this is the final word on a thorny and important issue.
Accommodation is the Achilles’ heel of the duty to consult. First Nations’ frustration with the duty to consult is due to their first-hand experience with endless talk and little action. As long as meaningful accommodation remains elusive and only approached through sustained and dogged effort on the part of First Nations, the duty to consult will continue to sow frustration and cynicism.
In Chippewas, the court concluded that on the specific facts before it, the National Energy Board (NEB) had the necessary statutory powers to impose required conditions on the pipeline company as part of accommodation and therefore was able to fulfill the duty to consult. The implications of the court’s narrow and specific conclusion on this point are important for companies, the NEB, other administrative tribunals and First Nations.
Contrary to the assumptions of many commentators, Chippewas is not a wholesale endorsement of the NEB’s processes and ability to discharge the Crown’s duty to consult. Depending on the facts of other projects and the required depth of consultation for those projects, the NEB might not have the necessary statutory powers required to accommodate First Nations. When such a case arises, the law is clear: the NEB will not be able to make a decision until the federal government steps in and fulfills the Crown’s outstanding constitutional obligations.
This principle applies to all administrative tribunals (and logically to all government decision makers). Before making a decision they must correctly gauge the required depth of consultation for a specific project, decide on the necessary accommodation measures (if any) and ensure that either they have the statutory powers to realize the required accommodation or that government does so through a parallel process. Until these steps are taken, they cannot decide.
One of the central problems with the duty to consult and accommodate is that all too often the focus is on consultation, not accommodation. With varying success, First Nations fight hard to secure meaningful accommodation through negotiations. One of the challenges they increasingly face is the argument that their rights must be “balanced” with the wider public interest.
In 2017 the court reiterated two important points on this issue. First, neither broader economic interests nor the public interest trumps the Crown’s obligations to consult and accommodate First Nations. If the duty to consult is not fulfilled, a project cannot be in the public interest. Second, because unproven and unrecognized Aboriginal rights do not give First Nations a veto as part of the duty to consult, the Crown and its agents are under a special responsibility to accommodate First Nations.
In regard to the veto question, in 2017 the court reiterated an important point it made over twenty years ago in Delgamuukw that governments and companies too often overlook. When consultation is based on a First Nation’s unproven, unrecognized claims, the First Nation does not have a veto. But in certain cases, First Nation consent might be required when the duty to consult is triggered by proven claims.
For First Nations who succeed in forcing meaningful accommodation negotiations, the question quickly arises: How strong is their negotiation position? In Ktunaxa, the court went further than in any previous decision in emphasizing the importance of First Nations not taking “unreasonable” positions.
The court criticized the Ktunaxa for taking what it described as an uncompromising and absolute position that left no room for negotiation and accommodation, and warned First Nations against taking “unreasonable positions.”
There are two problems with the court’s reasoning. First, why should one party in negotiations get to undermine and dismiss the position of the other party by simply labelling it “unreasonable”?
Second and most importantly, applying a reasonableness test to a First Nation’s demands for accommodation would drastically narrow the scope of the duty to consult. It would exclude the most serious infringements and intractable disputes from the duty to consult, and limit the duty to addressing impacts on First Nation rights that can be readily accommodated. This cannot have been the court’s intention in Ktunaxa.
A final word on reasonableness. The more the court narrows the duty to consult by relying on concepts of “adequacy” and “reasonableness,” the further the court drifts away from its earlier descriptions of the duty as a constitutional imperative that must be met. By the time duty to consult is twisted and contorted based on “reasonableness” and “adequacy,” the duty becomes a pale shadow of the court’s lofty rhetoric. If the court continues to undermine the scope and effectiveness of the duty to consult for unproven and unrecognized rights, First Nations will increasingly choose to litigate to establish their rights instead of wasting their time consulting over unrecognized rights.
The question of whether the duty to consult and accommodate applies to existing infringements and cumulative effects has been at the centre of many lower court decisions over the last ten years. Governments and companies usually take the view that the duty is limited to new impacts arising from a new decision, while First Nations argue that it is illogical and dishonourable to ignore the wider context.
In Chippewas the Supreme Court reiterated and clarified a simple point it first made in Rio Tinto but has since been often lost or misunderstood. While existing infringements on their own do not trigger the duty to consult, once the duty is triggered by new potential impacts, the scope of the ensuing consultation and accommodation may be informed by cumulative effects and the historical context. On this issue, the court cited with approval Chief Justice Finch’s reasons in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011. By reiterating its reasoning from Rio Tinto and endorsing the approach taken in West Moberly, hopefully the court has put an end to the simplistic argument that the duty to consult is blind to existing infringements and cumulative effects.
A source of continuing frustration for First Nations has been governments’ persistent conflation of duty-to-consult processes with environmental assessments. While governments are free to rely on existing procedures and processes, including environmental assessments, as part of their efforts to fulfill the duty to consult, this should not change the focus and purpose of the engagement. In Clyde River the court criticized the National Energy Board for mistakenly focusing its inquiry on whether the project would cause significant environmental effects. The court confirmed what First Nations have been saying for years: when the duty to consult is triggered, a consideration of environmental effects alone will not do—the Crown must assess potential impacts on Aboriginal and treaty rights. A standard environmental assessment alone is unlikely to fulfill the duty to consult.
Charles Dickens’ Oliver Twist famously pleaded for more gruel. All too often First Nations have found themselves in similar circumstances with the duty to consult. Having expended their limited resources and succeeded against the odds in convincing a judge that government failed to live up to its constitutional obligations, their “win” often means another serving of the thin gruel of the duty to consult that left them dissatisfied in the first place.
From a legal perspective, the problem is one of remedy—what action should the courts take when governments fail to fulfill the duty to consult? Beginning with its 2014 decisions in Grassy Narrows and Tsilhqot’in, the Supreme Court has moved decisively to clarify the law on remedy. A decision that affects Aboriginal and treaty rights and does not comply with the duty to consult should be quashed. Moreover, litigation is not an opportunity for further consultation and, when a government is found to have failed to consult and accommodate, it does not simply get a do over—there are no mulligans.
The importance of the court’s clear direction on this issue should not be lost on governments and proponents. It is no longer acceptable for governments and companies to take a minimalist approach to the duty to consult on the assumptions that a First Nation is unlikely to challenge them in court and that even if a court does find against them, they will get a second chance to make it right. They now face the real possibility of projects being cancelled and all the loss and uncertainty that would result.
There were major advancements in duty-to-consult law in 2017. The Supreme Court’s confirmation that the permissible degree of delegation of the duty is limited by the decision maker’s ability to accommodate is important for all decision makers to be aware of, not just administrative tribunals. Equally important is the court’s endorsement of parallel, direct engagement processes with the Crown, something that First Nations have been demanding for years.
Meaningful accommodation continues to be the thorn in the side of the duty to consult. While the court in 2017 took an important step forward by confirming that governments don’t simply get a do over and that authorizations should be quashed when they fail to properly consult and accommodate, its emphasis on the “reasonableness” of First Nations’ demands may ultimately be seen as two steps back.