The Duty to Consult

Any discussion of the duty to consult in Canadian law must start with the trilogy of cases that have transformed the field of discourse, particularly the Haida Nation decision, in which Chief Justice McLachlin set out the fundamental terms of the doctrine.¹ The issue was the government’s replacement and transfer of a tree farm license to Weyerhaeuser, a large forestry corporation. The Court held that the government ought to have consulted the Haida Nation prior to these actions, as the Crown is bound to act honourably in its relations with Aboriginal peoples. According to the Supreme Court, this duty to consult arose even prior to a final proof of a claim in the courts.²

It was precisely because the final shape of Aboriginal rights and title had not yet been established that it was important for governments to consult with the Aboriginal community so as not to affect their interests detrimentally during the process of proving and resolving a claim. A legal duty to consult, wrote McLachlin C.J.C., “arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”³ The content was to be defined based on a spectrum that takes into account the strength of the claim and the seriousness of the potential adverse impact on the right or title claimed.⁴ Contrary to the conclusion of the Court of Appeal in the case, the Supreme Court of Canada held that the duty is one owed by the Crown only, due to its duties of honour, and not by third parties such as the forestry company.⁵

In Haida Nation, the impact of forestry on the Haida was serious, and the government had not consulted the community beforehand. The Supreme Court concluded that it had breached its duties and needed to consider significant accommodation.⁶ In the companion case, Taku River Tlingit First Nation,⁷ the Supreme Court ultimately concluded that the government had met the consultation requirements through an environmental assessment.⁸ The case arose from a mining company’s application to reopen an old mine in northwestern British Columbia; the company hoped to build a 160-km road to the mine through traditional Taku River Tlingit territory. The Tlingit raised concerns about the possible impacts on wildlife and other traditional uses, as well as their title claim. Although the potentially serious impacts implied some depth to the consultation,⁹ there was a significant consideration of Aboriginal claims, including strategies on wildlife migration and the management and closure of the road. The court concluded that the government had met its duty.¹⁰

The Mikisew Cree case¹¹ extended this doctrine to treaty rights, subject to appropriate modifications.¹² The case arose following protests by the Mikisew Cree against the location of a winter road near their reserve on Treaty 8 lands in northern Alberta. The Mikisew Cree argued that this road would affect their traditional lifestyle because it crossed a number of trap lines and hunting grounds.¹³ Where the Minister planned to “take up” lands under the treaty for the purpose of this road, the Supreme Court of Canada held that there was an obligation to consult in order to ensure that there was an honourable process in the “taking up” of these lands.¹⁴ In this case, there had not been adequate consultation, and Justice Binnie’s judgment sent the Crown back to deal with the project in light of the reasons elaborated in the judgment.¹⁵ The duty to consult thus arises in relation to government actions that have potential impacts on treaty rights.¹⁶ Obviously, what is known to the government in terms of the content of the right involved is more substantial in the context of treaty rights, thus rendering parts of the basic test less relevant.¹⁷ Subject to the resulting modification, however, the duty to consult arises in the context of treaty rights on an approach parallel to that in the Aboriginal rights or title context.¹⁸

In these cases, the Supreme Court established a new legal doctrine — indeed, a new realm of Aboriginal law. What began with a simple tree farm license led to the need to understand a new legal framework in relation to Aboriginal rights, title, and treaty rights. This book seeks to offer readers an understanding of this area by going beyond the basics of the Supreme Court of Canada’s three initial cases.

1.2 Understanding the Duty to Consult

The rights recognized and affirmed by s. 35 of the Constitution Act, 1982 — which now include the duty to consult — are not specified by the written text of the Constitution. In some senses, then, the definition of s. 35 rights has been left to negotiations and to the courts. This is not owing to a lack of content to s. 35. Indeed, s. 35 merely “recognized and affirmed” rights that existed prior to European settlement and had, in many respects, ongoing status in the common law, even if not always effectively recognized.¹⁹ However, uncertainties around the form and scope of these pre-existing rights, combined with the complex cross-cultural interaction of concepts,²⁰ have given rise to ongoing instability in Canada’s constitutional law regarding Aboriginal rights, with concepts sometimes shifting rapidly in the space of a few years.²¹

This lack of stability is not surprising in constitutional law. In determining what a limited set of cases mean in the context of a case before the court, judges will consider the underlying meaning of the constitutional norms at issue, often in terms of the underlying theoretical scope of the concepts and a normative conception of the rights. So, for instance, a judge confronting an innovative factual case concerned with freedom of expression will consider not only the direct application of prior case law but also the underlying normative conceptualization of freedom of expression that this case law embodies. This is not to say that the judge has any duty other than to apply the law; it is, rather, to say that the content of the law is rich with meaning and a judge must work with this. There is, of course, a much longer-standing and larger body of normative analysis on the meaning of concepts such as freedom of expression than on the complex intersocietal concepts arising in the s. 35 context, which gives rise to ongoing challenges in applying the section in a consistent and principled manner. Judges are developing the body of thought in this area in the complex context of cross-cultural legal, normative, and political encounters.

An important question is that of on what normative conceptualizations of the duty to consult judges or others needing to interpret the law are to draw when faced with a novel legal question in a factual context unlike those that have come before. In such cases, judges must consider not just the determinate rules from prior cases but also the broader principles that these rules embody and instantiate.²² Only by developing, with appropriate prudence and modesty, a broader theory of the law is it possible to address previously unanswered questions within the law.

One might suggest that the judges, in the duty to consult context, simply draw on a long-standing concept of the “honour of the Crown,” ²³ but this does not displace the need to develop a broader theoretical account of the duty to consult in order to understand it. The early doctrinal foundations of the “honour of the Crown” consist of a concept that gave rise to a principle of interpretation that Crown grants should be interpreted in a manner such that they were not void.²⁴ Without further development of the concept, this doctrine has no immediate application in the context of the duty to consult. To understand the duty to consult, it is necessary to probe potentially deeper theoretical accounts. It would be imprudent to characterize the duty to consult before a careful analysis of the existing jurisprudence, but it is also important to set out some possibilities in order that one can consider them carefully as one proceeds through the more doctrinal discussion.

1.3 Theoretical Approaches to the Duty to Consult

To understand the duty to consult doctrine in a deeper sense, then, it is valuable to go behind the judgments to the more fundamental interests or principles the duty to consult furthers. Doing so provides a set of possible lenses for looking at the case law and evaluating each case as to how successfully it advances the doctrine’s underlying purposes. It also enables an estimation of likely future directions of the duty. Particularly in the case of areas of law that are not fully defined by existing determinations of legal doctrine — such as in the context of Aboriginal rights protected by s. 35 of the Constitution — there is both a need to refer to existing doctrine and a need to go to the theoretical foundations of these areas to understand the law and its future development.

In terms of the basic doctrine from the Supreme Court of Canada’s initial trilogy, to begin to distinguish among the fit of different theories of the doctrine, it is worth noting five fundamental components of the duty to consult as developed in those cases:

1) the duty to consult arises prior to proof of an Aboriginal rights or title claim or in the context of uncertain effects on a treaty right;²⁵

2) the duty to consult is triggered relatively easily, based on a minimal level of knowledge on the part of the Crown concerning a possible claim with which government action potentially interferes;²⁶

3) the strength or scope of the duty to consult in particular circumstances lies along a spectrum of possibilities, with a richer consultation requirement arising from a stronger prima facie Aboriginal claim and/or a more serious impact on the underlying Aboriginal right or treaty right;²⁷

4) within this spectrum, the duty ranges from a minimal notice requirement to a duty to carry out some degree of accommodation of the Aboriginal interests, but it does not include an Aboriginal veto power over any particular decision;²⁸ and

5) failure to meet a duty to consult can lead to a range of remedies, from an injunction against a particular government action altogether (or, in some instance, damages) but more commonly an order to carry out the consultation prior to proceeding.²⁹

The most commonly advanced theoretical foundation for the duty to consult doctrine is that provided by the Court itself as an explanation of the grounding of the doctrine, with McLachlin C.J.C. explaining in Haida Nation that the “government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown.”³⁰ Her discussion of the honour of the Crown encompasses, in adjacent text, a discussion of the idea that the honour of the Crown also embodies such related principles as that the Crown should not engage in “sharp dealing” in making or interpreting treaties,³¹ potentially suggesting a somewhat attenuated version of the content of the honour at stake.

Nonetheless, there is a legal obligation on governments arising from the principle that the Crown must act in accordance with a particular virtue — namely, honour. The concept of the Crown, of course, is symbolic, with the underlying foundation amounting to a claim that a settler people in an ongoing encounter with Indigenous peoples must deal honourably with them and, more generally, act in accordance with the virtue of honour.

This theoretical approach can fit readily into some of the features of the duty to consult doctrine. It fits easily enough with the claim that governments must consult with Aboriginal peoples about unproven claims, for the prospect of the undermining of an Aboriginal right while it is stalled in litigation or negotiation would be dishonourable. Similarly, the easy triggering of the duty to consult fits with a plausible conception of honour. Our conception of honour needs to be reasonably fulsome, for if we acknowledge that one of its central components is a prohibition against sharp dealing, sharp dealing on the application of the concept itself cannot be permitted. On this standard, though, the spectrum of duties potentially embraced by the duty to consult in particular circumstances becomes more difficult to justify. To suppose that it is stronger in some circumstances and weaker in others does not sit easily with an effort to ensure that (honourable) dealing is above reproach. Indeed, it arguably appears to contain more of a weighing of costs and benefits than any conceptions of honour will contain.

This realization leads us directly to a second possible theoretical approach to the duty to consult, one to which the Court adverts in Haida Nation, although less explicitly. Prior to discussing the duty to consult in Haida Nation, the Court considered first whether to grant an interlocutory injunction until there was a resolution of the Aboriginal rights case. Chief Justice McLachlin dismissed the possibility:

An interlocutory injunction over such a long period of time might work unnecessary prejudice and may diminish incentives on the part of the successful party to compromise. While Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests. For all these reasons, interlocutory injunctions may fail to adequately take account of Aboriginal interests prior to their final determination.³²

This dismissal is part of the grounding for the duty to consult doctrine that the Court elaborates later in the judgment, implicitly constituting part of the justification for this latter doctrine. This justification, then, is implicitly that the duty to consult doctrine — as compared to an approach founded on interlocutory injunctions during litigation or negotiation — fosters appropriate incentives for negotiation and is thus preferable on the grounds of what will promote the best negotiation processes between Aboriginal and non-Aboriginal communities, thus calling for attention to a certain kind of consequence of the doctrinal framework.

In one sense, this theoretical explanation of the doctrine would assert the responsibility of the courts to cast the “shadow of the law” — which is sometimes described as what shape it puts on negotiation contexts³³— to facilitate something desirable within the negotiation processes. This kind of explanation, of course, does not have to say that the proper analysis of the duty to consult in specific circumstances is that which facilitates the best negotiation process or outcome in those particular circumstances. The courts’ rationale for promoting negotiation in the Aboriginal law context — a not infrequently expressed preference³⁴ — is, in part, that they lack significant information that the parties can best bring to bear on a particular Aboriginal rights negotiation.³⁵ Lacking full information about particular circumstances and promoting negotiation for precisely this reason, the courts might then easily promote appropriate negotiation through a structuring of such contexts that creates appropriate incentives for the parties themselves.

This theoretical approach to the duty to consult fits more readily with the notion of a spectrum. The structuring of negotiation will be dependent on the circumstances that give rise to claims for greater or lesser bargaining power by the different parties. It is appropriate that Aboriginal communities with relatively stronger prima facie claims or whose claims are more seriously affected have greater power in the relevant negotiation processes. This theoretical approach thus more readily explains the spectrum analysis within the duty to consult.

It can be argued, however, that it sits less easily with the notion of an easy triggering of the duty to consult. On this theoretical approach, the notion of the spectrum within the duty to consult is one advancing a structuring of negotiations in accordance with relevant moral considerations. An Aboriginal rights claim of little prima facie strength in the context of a near-trivial impact on the community would arguably not give rise to a moral reason to create any bargaining power at all for the Aboriginal community, yet the duty to consult doctrine would nonetheless create some rights, if only at a minimal level.³⁶

Perhaps more significantly, a theoretical approach based on these kinds of result-oriented considerations would speak to an element that is not present in the duty to consult — namely, a limitation of the duty to consult in some circumstances where limitations would be justified on an appropriate cost-benefit analysis. (The argument for a less easy triggering of the duty is actually a special case of this broader point.) If there were specifiable circumstances in which the introduction of a duty to consult would skew negotiations in a manner that promoted inefficiency, a results-oriented account of the doctrine would lean toward taking account of these circumstances in the form of further limits on the doctrine. So, for example, circumstances in which governments wished to develop certain lands for significant economic development purposes would, on this account, reasonably give rise to a more attenuated duty to consult in relation to proposed government activities on those lands.

A third theoretical approach to the duty to consult would see it as a doctrine promoting “reconciliation” — itself a complex and contested concept in Aboriginal law, as I have discussed elsewhere,³⁷ but one not easily described as a result because it is often seen more in terms of a process. This theoretical approach would, like the others, find some basis in the text of the Haida Nation judgment:

Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?³⁸

Within this account, then, the duty to consult is posited as a doctrine encapsulating a just reconciliation between the Crown and Aboriginal peoples in the context of unproven claims.³⁹ The duty to consult is an adjustment of government conduct to reflect unresolved claims, as part of a reconciliation of prior Aboriginal occupation and current Crown sovereignty.

Specific formulations of this account might potentially collapse into one of the other accounts,⁴⁰ but this account could be described as related to a more generalized account of just relations among communities in the context of unresolved claims among those communities, or as striking a sort of balance between rights claims in the context of uncertainties about those claims. It could conceivably be situated within broader accounts of just relations between communities or within broader accounts related to rights conflicts. There would thus clearly be more that one could develop within this account, for several possible versions are implicit within it. Indeed, without that further development, it faces a danger of being able to provide relatively limited guidance on implications for the doctrine. That said, something like this will obviously fit with some elements of the doctrine, with it following reasonably that an account of just relations between and among communities and/or rights conflicts between them will properly become involved in analysis based on a relatively low standard for the triggering of the duty to consult, and that the scope of the duty that mediates between the communities will then be adjusted to the circumstances of the relationship in the context of a particular rights conflict. To say this, however, is to submerge a larger set of questions concerning the details of this theoretical account that do not surface as easily from the text itself. For present purposes, however, I will leave it at that and say that some such account could plausibly emerge in a more detailed form.

A fourth possible theoretical approach to the duty to consult, different yet again, would see the judicial development of a duty to consult as exemplifying and fostering what some would assert to be a broader normative commitment of Aboriginal law — namely, that it promote what Slattery terms a “generative constitutional order.”⁴¹ Such a theoretical approach would, as Slattery describes it, see “section 35 as serving a dynamic and not simply static function.”⁴² Parts of the Haida Nation judgment appear to situate the duty to consult within this kind of dynamic process:

the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather it is a process flowing from rights guaranteed by s. 35(1). . . .⁴³

This account of the duty to consult would see it as promoting an ongoing process of reconciliation. Concerned with an ethic of ongoing relationships, it would fit with some elements of the doctrine, notably the circumstances in which it arises and the preference for remedies for violations that promote ongoing negotiations. This account would also ground an unlimited doctrine, one not completed at any particular moment in the context of an ongoing relationship. However, the notion of the spectrum within the duty to consult doctrine is that a duty to consult can in some circumstances be successfully fulfilled without an ongoing course of consultations. So, again, there are ways in which this possible foundation of the duty to consult doctrine fits more and less well.

Each of these theories more readily fits some aspects of the doctrine than others. The obvious implication is that each, if adopted as a more definitive theoretical foundation, would push elements of the doctrine in different directions. To take one example in the elements already under discussion, an honour-oriented account would minimize the role of the spectrum analysis within the doctrine, whereas a results-oriented account would tend to expand it.

The different theoretical accounts will have different implications, as well, for questions not explicitly addressed thus far. Initial pronouncements on the modern duty to consult have tended to limit its application explicitly to Crown decisions and, implicitly, decisions concerning Crown lands. Lower court case law, more recently, has reawakened questions about the implications of the duty to consult for decisions related to privately owned lands, in light of suggestions in some of this lower court case law that there remains more to be said about the implications of Aboriginal title for privately owned lands.⁴⁴ The different theoretical approaches to the duty to consult potentially lead in significantly different directions on such questions. At the very least, they lead to entirely different analyses; given that, it might be surprising if they led to the same outcomes. An open-ended fostering of a generative constitutional order would presumably be favourable toward an expansion of the generative scope of the constitutional order. An approach concerned with reconciliation might look to the effects of opening such questions on prospects for reconciliation. A results-oriented account would look to the effects on negotiation contexts, likely having concerns with the uncertainties created for private landowners. An honour-oriented account would look to the overall honour of Canada’s dealings with Aboriginal peoples, and would potentially be more sympathetic to the prospect of this development. These descriptions of likely attitudes are, of course, tentative, in that one could pursue significantly more work within each of these accounts to flesh out the account and its implications for this scenario. But they are sufficient to reinforce the likelihood that these different underlying accounts lead in different directions on controversial questions concerning the duty to consult.

The potential instability in the law relative to different theoretical underpinnings for it speaks to one reason we might have for seeking a more definitive theoretical account of the duty to consult doctrine. Although theoretical argument has been a major driver in Supreme Court of Canada case law on Aboriginal rights, particularly in the context of s. 35, in many different s. 35 contexts, there are these remaining sorts of uncertainties in relation to theoretical underpinnings, and these uncertainties may be a possible explanation of some of the kinds of dramatic shifts we have seen in some areas of Aboriginal law through the post-1982 period. In some senses, then, the particular example of theorizing the duty to consult presents a subset of the challenges in theorizing Aboriginal law more generally.

It is important to recognize the presence in the duty to consult case law of several distinct theoretical foundations for the doctrine, some of the inconsistencies between them and their implications, and some of the interactions with the more general domain of theorizing Aboriginal law. Coming closer to answers on the theoretical foundation for the duty to consult will depend on further discussion of more detailed elements of the doctrine, more examples of its applications by lower courts that are actually putting it in practice, and the development of practices and policies by various stakeholders.