The Duty to Consult

The page numbers in this index refer to the print edition of this book.

Aboriginal: archaeological or burial sites 52, 69; interests see accommodation of; law-making 73; pre-contact / traditional practices 13, 26, 42, 51, 54, 57, 74; self-government 26, 71

Aboriginal consultation partners 37-39, 40, 54-5, 70-2; challenges for 37-8; funding for 38, 73

Aboriginal consultation policies 36, 70-4, 81, 93; and Alberta 71-3; government and industry responses to 68, 72-4, 78-9, 89; refusal to meet with other than government or lead proponents 73, 78; and Saskatchewan 71, 73

Aboriginal / non-Aboriginal relations 9, 11, 18, 20, 62; fostered by duty to consult 41,

Aboriginal rights: claims 26, 32, 39, 50; in Constitution Act, 1982 14, 15; pre-existing 14, 19, 26; proof of 28-9; test 27; vs treaty right contexts 48, 49, 54. See also treaty rights.

Aboriginal title claims 10, 25-6, 28-9, 32, 48-61; issues: in BC 24, 26, 69

Aboriginal veto power: not included in duty to consult 16, 63; in UN Declaration 86

Acadia Band v. M.N.R.: recognition of Aboriginal self-government 26 (note 14)

accommodation 13, 20, 36, 41, 46, 47, 49-50, 51, 54, 55, 59-60; of Aboriginal interests 13, 16, 24, 47, 50, 53, 58-9, 63

administrative boards and tribunals (quasi-judicial bodies) 41, 44, 67-9, 71, 79; not themselves subject to duty to consult 44

adverse effect element of duty to consult trigger 12-13, 25-7, 29-32, 34, 42, 48, 50

adverse impact on Aboriginal community 12-13, 18, 29-30, 42, 50, 54, 59-60, 85

Ahousaht Indian Band v. Canada 28-9,37; “reasonable efforts” 47

Alberta: consultation policies 71-3;

Alberta’s First Nations Consultation

Guidelines on Land Management and

Resource Development (2007) 78

Alberta Court of Appeal 24, 29-30, 31

Alberta Court of Queen’s Bench 31, 43

Anaya, James 86-7

Assembly of First Nations (AFN) 70, 87 (note 16)

Australia 77, 82, 92; compared to Canadian system 90-1; compulsory negotiation process 88-9; “Right to Negotiate” 87-9, 90-1

Beaver Lake Cree Nation 62

Binnie, J. (Mikisew Cree case) 13, 25, 27, 28

British Columbia Court of Appeal 11, 23, 29, 62-3

British Columbia Environmental Appeal Board 37-8, 51-2, 73-4

British Columbia Supreme Court 35, 42

British Columbia Utilities Commission 69

Brokenhead Ojibway Nation v. Canada: Keystone Pipeline 57

Canadian Nuclear Safety Commission 38

Carrier Sekani Tribal Council v. British

Columbia 11, 105n103; as to administrative decision-making boards and tribunals 111n36

Charter of Rights: engagement of 25

common law 14, 23, 80, 95 compensation 61, 77; in Australia 91; in UN Draft Declaration 85; economic 61-3, 69, 73, 77; in ILO Convention 84, for irreversible breach 61-2; non-compensable damage 49; retroactive 62; other forms of 63

Congress of Aboriginal Peoples (CAP) 40, 70-1

Constitution Act, 1867 119n33-4

Constitution Act, 1982 9, 14, 89; s. 35 9-10, 15, 22; as dynamic 20

consultation: “good consultation” 46-7, 59, 63-4; meaningful 48, 54-5, 63-4; “meaningful record” to establish consultation 42; reasonable efforts to consult 41, 44, 47, 51, 55, 68

consultation partners 35-40, 44-5, 54-5; Aboriginal partners which see; consultation corridor 76; explicitness necessary 36; identifying 38-40; Métis 39-40, 70, 71, 72

consultation policies. See under Aboriginal; corporate; government; Métis.

content of duty to consult 47-59; based on strength of Aboriginal claim and seriousness of impact 50; intensity matrix 56; spectrum 46, 48-9, 50. See also adverse impact; prima facie strength of claim; seriousness of effect.

corporate consultation policies 10, 74-7; in mining sector 75; policy interactions amounting to “law” 78-9; corporate consultation practices 76-7 corporate involvement in law-making processes 75, 79, 81

Crown: constitutional duty to consult 9-10, 15-17, 21, 32, 36-7, 41, 44, 51-5, 58-9; in Haida case which see; honour of which see; option to include third parties 35, 36, 43, 90; sovereignty 19-20

Dakota: and corporate negotiation 76; Dakota Sioux and Aboriginal title claim 56

Declaration on the Rights of Indigenous Peoples (UN 2007) 82-3, 85-7; Aboriginal veto power 86; Article 20 84; Article 30 84-5; Canada voted against 82, 86; Draft Declaration (1994) 83, 84-5, 87; “free, prior, and informed consent” (FPIC) 85-6, 87

Delgamuukw case: Aboriginal rights 62 (note 55); Australian interest in 88

Dene Tha’ First Nation v. Canada 32, 33; government failure to consult 35, 50 (note 16), 54; MacKenzie Gas Pipeline 32, 35, 57; meaningful consultation 54-5; underlying goal of duty to consult doctrine as reconciliation 19 (note 39), 60

dispute resolution 41, 42, 49, 54

duty to accommodate 20, 23, 28, 35, 41, 48-50, 59-60

duty to consult: history of 9-10, 14-15; as a constitutional duty of the Crown see Crown; content of which see; facilitating negotiations 17-19, 21, 41, 63-4, 76, 94; factor discouraging development of other Aboriginal rights jurisprudence 27; factors weakening which see; failure to consult which see; failure-to-meet remedies 13, 16, 35, 43-4; future of 36; impact of on corporate stakeholders 10, 36, 43-4, 74; impact of on treaty rights 13, 24, 30, 48; implications of for third parties 35-6, 43-4, 50, 77-8; international importance of 11, 75, 81-92; limitations on 19, 28-30, 44-5, 51-3; litigation around 26, 34, 52, 60; not owed by third party stakeholders 10, 12-13, 34, 35-6; not undermined by uncertainty of claim 25-6, 27-8; owed to community not to individuals 37-8; prior to final proof 10, 12, 16, 17, 32, 42, 59; scope of which see; as shared responsibility 37, 51-2; spectrum of 16-17, 18, 21, 55-7; theoretical foundations of 16-22; timeline 55, 59; triggering which see; underlying principles of 15-16, 60, 94

economic accommodation 61-3, 69, 73, 77; language preferable to “compensation” 61

economic development 19, 32, 35, 61-2

Enbridge Inc. 68; corporate policy on consultation 76-7

environmental assessment: as meeting duty to consult 13, 34, 35, 49-50

Environmental Assessment Act (British Columbia) 49-50

factors weakening duty to consult: economic vs cultural claims 53; overlapping claims 50-1; past surrender 52-3; development on private land 50, 58

failure to consult 35-41, 42-4, 49, 54; implications for third parties 43-4, 50, 74, 77-8

Federal Court of Canada 28, 32, 38, 41, 54, 57-8

Federal Court of Appeal 28, 30-1, 38, 47

Federation of Saskatchewan Indian Nations (FSIN) 71

“free, prior, and informed consent” (FPIC) 85-6, 87

Gateway Pipeline 77

generative constitutional order 20, 21

government action: contemplated 32-4, 50, 53, 55; lower courts on 30-2; reasonableness of 41

government consultation policies 36, 55-6, 70; provincial 66-8, 69, 89; and industry stakeholders 68

Haida Nation 9, 12-13, 17; not consulted prior to government action 13, 49

Haida Nation v. British Columbia 19, 20, 23, 32, 42; and accommodation 48, 59-60; Crown duty to consult 12, 16-17, 19, 23, 25-7, 30, 35, 48-9; as departure from earlier case law 10, 30, 43; interlocutory injunctions 17-18; and provincial policy 66; triggering test 25, 27-8, 29, 48

Haida Nation trilogy 9-11, 12-14, 15, 72

Halfway River First Nation v. British Columbia: early lower court recognition of duty to consult 10 (note 10)

Hiawatha First Nation v. Ontario 52

honour of the Crown 12-13, 15, 16-17, 25, 30, 47, 49, 54, 94; cannot be delegated 35, 90

Horse Lake First Nation (HLFN): consultation model independent of government funding 73; consultation policy 72-3; refusal to accept consultation with other than government or the lead proponents 78 (note 86)

Hupacasath First Nation v. British Columbia 35, 42; and compensation 61 (note 53); influenced by Tsilhqot’in Nation case 100n44

Indian Act 39, 71

injunctions 16, 35, 42-3, 53, 94; interlocutory 17-18

international law 74-5, 79, 91-2, 93-4; and duty to consult 81-2, 82-8. See also Australia; International Labour Organization; United Nations.

International Labour Organization (ILO): ILO Convention No. 169 (1989) 83-4, 86; Article 6 (government obligations) 83-4; Article 15(2) (resources) 84

international perspectives 81-92

judicial intervention 34, 41-4, 88, 94; damages 43; provincial superior court vs Federal Court jurisdiction 41, 89. See also injunctions; litigation; remedies.

justification test: in Sparrow 9, 43

Ka’a’gee Tu First Nation v. Canada 43 (note 99), 54-5; irreversible effects of government action 53 (note 30)

Kitchenuhmaykoosib Inninuwug First Nation 42-3. See further Platinex Inc.

knowledge element of duty to consult trigger 12, 16, 25-9, 34, 48, 50; constructive 25, 26, 27; necessity for “meaningful knowledge” 28-9, 34

Kruger Inc. v. Betsiamites First Nation 41 (note 90), 103n59

Kwikwetlem First Nation v. British Columbia: administrative boards and tribunals 44 (note 103); meaningful consultation 55 (note 35)

Labrador Métis Nation v. Newfoundland and Labrador 39-40, 70

“law in action” v. “law in books” 65-6, 77, 80, 93-4

litigation 26, 34, 52, 60

Little Salmon / Carmacks First Nation v. Yukon 11, 52, 96n7

lower courts: creation of legislation outside application of duty 30-1; on government action 30-2;

to consult 31; on municipalities inconsistent with Haida Nation jurisprudence 30; limiting duty to consult trigger 28, 29-30; limits / constraints 44-5, 51-3; recognizing duty to consult 10, 21-2, 23-4, 44-5; and privately owned lands 21. See also Supreme Court.

Mabo and Others v. Queensland 88

MacKenzie Gas Pipeline. See Dene Tha’ and Brokenhead Ojibway

McLachlin, C.J.C. (Haida Nation case) 12-13, 16, 17, 23, 25, 28, 35, 44, 48, 53, 59, 87

Metlakatla Indian Band v. Canada: reasonable consultation 51 (note 20)

Métis consultation policies 70-72

Métis Nation of Saskatchewan 38, 72, 104 (note 80); other provincial Métis Nation organizations’ consultation frameworks 72

Mikisew Cree First Nation v. Canada 9, 13; and treaty rights 13, 25, 27, 28, 48, 108 (note 39)

mineral / resource extraction 33, 74, 75, 84, 89

Mining Amendment Act, 2009 (Ont) 70 (note 38)

Mining Association of Canada 75

Ministry of Energy and Resources: Sask 33

Ministry of the Environment: BC 69; Sask 67-8

Mitchell v. Canada: example of Draft Declaration provisions referred to in case law 87 (note 18) municipalities not to consult 30

Musqueam Indian Band v. Canada 42 (note 93), 52 (note 25), 61 (note 58)

nation-to-nation: discussions between Aboriginal and Asian nations 76; relationships 41

National Energy Board 57-9, 67, 68-9, 76

National Native Title Tribunal (Australia) 89

Native Council of Nova Scotia 28, 38-9, 40

Native Title Act, 1993 (Australia) subs. 25(2) 88

Natural Resources Canada 75 negotiation 17-19, 26, 79; cost of 37-8; compulsory in Australia 88-9

Newfoundland Court of Appeal 39

New Relationship (BC) 38, 69, 109 (note 5)

New Zealand 87-8; and UN

Declaration 82-3

Nisga’a Final Agreement: establishing consultation requirements 96 (note 7)

non-compensable damage 49

non-Status Indians 39, 40, 70, 71

Northern Shuswap Tribal Council 72

Ochapowace First Nation v. Canada: elements outside the realm of duty to consult 102n36

Ontario Energy Board 67-8

Ontario 52, 69-70; consultation policy 64-8, 72; legislation 69-70

Ontario Superior Court 42-3

Operational Procedures for Consultations with First Nations and Métis Communities (Sask) 67

Osoyoos Indian Band v. Oliver: similarity of Aboriginal reserve land to

Aboriginal title land 26

Penelakut First Nation v. British Columbia: administrative boards and tribunals 44 (note 106)

Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation 52-3, 70

Pound, Roscoe 65, 80

prima facie strength of claims: as element of duty to consult spectrum 12, 16, 18, 28, 50-1, 55-7, 58; in Haida Nation case 48-9, 59; prima facie breach as trigger 30

prior occupation: reconciled 19

private lands 21, 35, 50, 52, 58

profit-sharing 91

R. v. Bernard: duty to consult and reserve land 26 (note 12)

R. v. Douglas: duty to consult not triggered 29

R. v. Lefthand: duty to consult trigger limits 30, 31; irreversible effects of government action 53 (note 30)

R. v. Sappier; R. v. Gray 27

R. v. Sparrow 9, 43

R. v. Van der Peet: Aboriginal rights test 27

Re Enbridge Pipelines Inc 68, 76-7; consultation corridor 76 (note 74); corporate policy interacting with government decision-making processes 68-9, 79 (note 87)

Re Imperial Oil Resources Ventures Ltd 39

Re SemCAMS Redwillow ULC 69; administrative boards and tribunals 44 (note 107); corporate policy interacting with government decision-making processes 79 (note 87)

Re TransCanada Keystone Pipelines: corporate policy interacting with government decision-making processes 79 (note 87)

reconciliation 25, 30, 40, 47, 49, 54, 59-60, 63-4, 94; as result vs process 19, 20-1

Recognition and Reconciliation Act (BC) 69

relationship: duty to consult as fostering 44, 47, 94; consultation relationships in legislation 69

remedies: judicial 42-5; remedy for failure of duty to consult distinct from other breaches 43

reserve land 13, 26

resource development 19, 32, 91; in Australia 90-1; duty to consult impact on 10, 50, 57, 74

resource / mineral extraction 33, 74, 75, 84, 89

results-oriented theoretical approach 19, 21

revenue-sharing 61, 62

“Right to Negotiate” (Australia) 87-9, 90

Saulteau First Nation v. British Columbia: “reasonable efforts” 47 (note 4)

Saskatchewan: consultation context v. British Columbia 56, 62; consultation policy framework 36, 56, 66-7, 71-2, 73; funding available for consultation process 38; permit-by-permit process 33; resource rights 32-3, 75; and treaty rights 62

Saskatchewan Mineral Exploration and Government Advisory Committee guidelines 75

Saskatchewan Mining Association policy document 75

scope of duty to consult 16, 20, 28, 46-59, 62; dependant on scope of Aboriginal rights 26-7, 51-3. See also content.

seriousness of effect: as element of duty to consult spectrum 12-13, 16, 18, 48-9, 50, 53, 56

“sharp dealing” 16-17

strength of claim. See prima facie strength of claim.

Supreme Court of Canada 10-14, 26-30, 35, 38, 54, 59, 66; case law 23, 32, 48-9, 54; and UN Draft Declaration 87; leaving room for lower court interpretation of duty to consult 10, 15-16, 23-4, 44-5, 48, 70, 80-1, 93

Taku River Tlingit First Nation v. British Columbia 9, 13, 47 (note 2), 48, 49-50

Talisman Energy 74

third parties 37-8, 88; affected by failure to consult which see; not owing duty to consult 10, 13, 35-6

Thunderchild First Nation: consultation policy 73

Tlicho Agreement: consultation provisions 96n7

treaties 16, 27, 48, 49, 62; lack of in BC 62; modern 52

Treaty First Nations (Treaties 4 and 6) 77, (Treaty 8) 13

treaty rights 56-7, 75; v. Aboriginal rights contexts 13, 48, 49, 50-1, 54; and the Crown 13-14, 27, 34, 37, 48, 52-3; and duty to consult 13, 25-9, 30, 59, 62; remedy for breach of distinct from breach of duty to consult 43

triggering of duty to consult: adverse effect element which see; conditions 24-5, 50; easily triggered 16, 17, 18, 20, 29, 30, 32 / less easily triggered 19, 34; knowledge element which see; test 27, 29-35, 50, 55 / exceptions to test 34

Tsilhqot’in Nation v. British Columbia: implications of Aboriginal title for privately owned lands 100n44

Tsuu T’ìna First Nation v. Alberta 31, 43

United Nations General Assembly 82, 83, 86. See also Declaration on the Rights of Indigenous Peoples.

veto power. See Aboriginal veto power.

Weyerhaeuser 12, 35

Wii’litswx v. British Columbia 61

Wik Peoples v. Queensland 88

World Bank 79, 87

Xats’ull First Nation v. Director, Environmental Management Act, and Gibraltar Mines 37-8, 51-2, 73-4

Yukon Court of Appeal. See Little Salmon / Carmacks.