Talk before you leap

The November 18, 2004, Supreme Court of Canada decisions in Haida and Taku River place a duty on government to consult with and accommodate Aboriginal groups affected by land and resource development. Though legally this duty applies only to provincial and federal governments, in reality it is in the best interests of industry to ensure sufficient consultation takes place.

In Haida, the B.C. Minister of Forests replaced a tree farm licence against opposition from, and without the consent of, the Haida Nation. In Taku River, a project approval certificate for the construction of a 160-km mining access road was issued by the B.C. Ministry of the Environment despite objections from the Taku River Tlingit First Nation. In both cases, the province argued that it had no obligation to consult with Aboriginal groups where their Aboriginal rights and title had not been proven. In both cases, the Supreme Court disagreed.

The Supreme Court for the first time set out a duty and general framework by which government must consult with, and in certain circumstances, accommodate Aboriginal groups in cases where Aboriginal title and rights have not yet been proven in court or established by treaty. As such, these decisions are of great significance to the resource development industry; they apply to all situations nationally.

The government’s duty to consult arises whenever it knows of potential Aboriginal rights or title and is considering conduct that might adversely affect them. The scope of consultation required depends on the strength of the asserted right or title and the seriousness of the potential adverse impact on it. Mere notice, disclosure of information, and discussion may suffice where claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. Where a strong claim exists, deep consultation including Aboriginal group submissions, Aboriginal participation in decision-making, and written reasons addressing Aboriginal concerns may be required. As detailed guidelines have not yet been established, in future cases even if a consultation process is followed, the scope and degree of the consultation may come under fire.

Sharp dealing is not permitted, but hard bargaining is. There is no duty to reach agreement, only to commit to a meaningful process of consultation. Aboriginal groups must not frustrate the government’s reasonable good faith attempts nor may they take unreasonable positions to thwart government efforts. The process does not give Aboriginal groups a “veto”. As the reader will appreciate, all of the above can sometimes be fine distinctions, and little guidance is given to help define the practical limits of the duty to consult.

Industry stands to benefit from the Haida and Taku River decisions in several ways. First, the Supreme Court was very clear that the duty to consult applies to government, not industry. Second, many feel the decisions give industry more clarity in dealing with Aboriginal groups. Third, it is now clear that Aboriginal groups do not have a veto power vis–vis title or rights not yet defined, they are not permitted to take unreasonable positions against reasonable good-faith government efforts, and there is no duty on the government to actually reach agreement.

These benefits to industry, however, also hide potential pitfalls and unclear answers. Should a governmental approval be quashed for insufficient consultation, a resource developer could be sent back to square one. Although the decisions provide some clarity in dealing with Aboriginal groups, detailed guidance is still lacking. Though the scope of potential Aboriginal group opposition to resource development has been clarified, the fact now facing industry is that any potential existence of Aboriginal rights or Aboriginal title triggers a duty to consult.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

Todd Wolfe, Carmen Diges and Kristi Sebalj are lawyers with McMillan Binch Mendelsohn LLP in Toronto. For a copy of a longer version of this report, contact Mr. Wolfe at tel. 416-865-7199, fax 416-865-7048, or e-mail todd.wolfe@mbmlex.com.