by Jeanie Lanine, Woodward & Company ^[1] (October, 2006)

Citation: Lanine, Jeanie, 2006. “State of the Law on the Obligation to COnsult and Accommodate First Nations”. Vancouver: Ecotrust Canada & Aboriginal Mapping Network. October 6, 2006. Available online at the Aboriginal Mapping Network web site: http://www.nativemaps.org/?q=node/2239

The purpose of this short paper is to provide those working for First Nations on Crown referrals with a brief overview of the current state of the law of consultation and accommodation. However, as the law is always developing, it is recommended that you obtain regular updates from legal counsel.

Who has the legal obligation to consult with First Nations?
The Supreme Court of Canada recently considered this issue in the Haida case.^[2] The Court held that it is the federal and provincial Crown governments, and not third parties (e.g. businesses), which must consult with First Nations about potential infringements of Aboriginal rights and title.

In Haida, the Court described the basis of the Crown’s legal obligation to consult with First Nations as follows:

"Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by section 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult, and where indicated, accommodate Aboriginal interests."

That said, the Crown governments may delegate some procedural aspects of the consultation process to third parties. For example, a forest company may have requirements in their forest licences to inform/consult with First Nations in the forest licence region.

Although third parties may participate in consultation and accommodation measures, the ultimate legal responsibility to consult First Nations always remains with the provincial and federal governments and their agents, such as Crown corporations.

When is consultation required?
A Crown government must consult with First Nations whenever it knows, or ought to have known, about a credible claim to Aboriginal rights or title that could be affected by government decision-making. A First Nation does not have to prove the right first in court. The First Nation does not have to show that the claim will succeed if the claim went to court. The First Nation claim need only have some evidentiary basis that government is, or ought to have been, aware of.

In addition, consultation must occur before any activity begins and not afterwards, or so late in the decision-making process that there is no opportunity for the parties to engage in meaningful negotiation.

A Crown government’s knowledge of credible claims of Aboriginal rights and/or title may come from many sources including:

• Information provided to government by First Nations in response to consultation letters
• Submissions made in statements of intent filed with the BC Treaty Commission
• Traditional Use Studies
• Regional planning processes
• Published information about traditional use and occupation readily available upon reasonable enquiry
• Previous responses provided to government by a First Nation regarding rights and title
• Previous litigation of Aboriginal rights or title by a First Nation or its members

Crown government decisions about the sale or leasing of Crown land, forest development, aquaculture, sport or commercial fishing, hunting, mining, and oil and gas activities commonly require consultation.

If a Crown government exercises significant decision-making power over private lands subject to an Aboriginal rights and/or title claim, and there is potential for infringement of these interests, this may also trigger the duty to consult.

What kind of consultation is required?
The level of consultation required is on a spectrum and depends upon the strength of the First Nation’s Aboriginal rights and/or title claim and the potential negative impacts of the proposed activity. The level of consultation required may also change as the consultation process goes on and information is exchanged.

At one end of the spectrum, where a claim to title or rights is weak or the potential for negative impacts minor, the government may only be required to give notice, disclose information, and discuss any issues raised in response to the notice. At the other end of the spectrum, where there is a strong Aboriginal claim and the risk of damage is high, deep consultation may be required.

Deep consultation generally requires government to fully inform itself of the practices and views of the First Nation, and to undertake meaningful and reasonable consultation with the First Nation with the goal of reaching negotiated interim accommodation pending final determination of the Aboriginal interest. For meaningful consultation to take place, a Crown government must act in good faith and with the intention of substantially addressing the concerns of the First Nation. The First Nation must also act in good faith in negotiations and will not generally have a veto over the proposed activity.

Factors that indicate a need for deep consultation include:

• The right is particularly important for the First Nation
• The right is protected by treaty
• The proposed activity involves a high rate of resource extraction
• The proposed activity significantly impacts lands selected for treaty settlement
• The proposed activity will cause permanent harm which cannot be compensated by money
• The proposed activity may lead to future development in the area
• The proposed activity involves a Crown grant of fee simple ownership to a private party
• Previous accommodation agreements have been reached with government in the same area

How does the Crown breach its duty to consult?
Whether a Crown government has breached a duty to consult with a First Nation will depend on the level of consultation required in the circumstances (see above). A breach may not be the result of a single incident, but could arise from a combination of several failings. The following incidents may suggest that the Crown has breached its duty to consult:

• The Crown failed to follow its own process for consultation.
• The Crown has treated the First Nation like any other stakeholder group or individual.
• The Crown ended previous accommodation arrangements without consultation.
• The Crown refused to deviate from its uniform policies designed for all First Nations and, thereby, refused to appreciate the specific First Nation’s interests.
• No effort was made to offer or even consider alternatives/options if the First Nation rejected the Crown’s initial proposals.
• The Crown allowed the infringement of a credible claim to continue without consultation.

When does a duty to accommodate arise?
The duty to accommodate arises if the consultation process suggests that government policy should be changed to accommodate the Aboriginal interest. For example, the duty to accommodate may arise if a First Nation’s claim is strongly supported by the evidence, or the proposed activity involves serious or permanent harm. The duty to accommodate does not mean the Crown must agree with the First Nation’s proposals. Instead, this duty implies a compromise between the two sides.

For many First Nations, accommodation will also include an economic component. Commonly negotiated items in interim measures or accommodation agreements between First Nations, the Crown, and the private sector, include:

• Land grants or tenures
• Cash payments
• Access agreements
• Cultural protection
• Environmental assurances
• Co-management of projects
• Revenue sharing
• Business ownership interests
• Employment opportunities
• Training
• Long-term business opportunities

Before a First Nation agrees to proposed accommodation measures it is very important that the First Nation fully understands the financial, legal, cultural, political, and environmental consequences of the agreement. In most cases this will require professional financial and legal assistance.

Are First Nations required to respond to consultation referrals?
First Nations have a duty to express their interests and concerns once they have had an opportunity to consider the information provided by Crown government officials about a proposed activity. First Nations must also consult in good faith and must not frustrate the process by refusing to participate.

When responding to consultation referrals, First Nations should:

• Specifically set out the affected Aboriginal rights and the manner in which the proposed activity will infringe those rights. Always refer to those rights in future correspondence.
• Refer to sources of information available to government about the affected Aboriginal interests. Sources may include treaty negotiation information, published documents (e.g. anthropological, archaeological), historical documents, traditional use studies, prior litigation, and prior interim measures agreements.
• Avoid showing an unwillingness to negotiate and potentially compromise in correspondence with the Crown. Be ready to invite further discussion.
• When rejecting government proposals ask for or suggest options/alternatives.
• If possible, clearly emphasize the irreversible nature of the rights infringement.

For more information about how to draft consultation response letters, please refer to the Response Letter Guide.

First Nations are not required to reach an agreement with representatives of a Crown government; they are only required to negotiate in good faith. Although a goal of consultation and accommodation is to avoid litigation, this will not always be possible. First Nations should therefore prepare for the possibility of litigation by keeping copies of all responses to Crown referral correspondence and accurate records of consultation meetings and telephone conversations.

Who pays for consultation?
In order to be able to provide meaningful input during the consultation process, most First Nations will require funding to ensure that they have the ability to retain and pay administrative staff, legal counsel, scientific experts, researchers, and, when required, translators.

At the present time, there is arguably no established legal duty on the part of the Crown to provide funding to First Nations to participate in consultation. It is therefore a legal risk to refuse to provide information with respect to your Aboriginal rights if funding is not provided. However, it is commonly recognized that capacity funding is part of the consultation process, and many levels of federal and provincial governments are providing such funding in practice. In all cases, First Nations should make every effort to secure capacity funding to ensure full participation in consultations.

In order to secure capacity funding, a First Nation should identify the resources they will require to participate in consultation, as well as the time frame for response. A funding request should then be made to the relevant Crown government agency and third party proponent. Some First Nations have developed specific consultation policies, processes and fee structures to deal with consultation referrals. For more information please refer to the Case Studies section of the Toolbox.

[1] The author wishes to acknowledge the contributions to this paper made by Tony Price, law student, Woodward & Company.

[2] Haida Nation v. B.C. (Minister of Forests et al), 2004 SCC 73.

Mikisew Cree First Nation v (Minister of Canadian Heritage), 2005 SCC 69
By Jeanie Lanine, Woodward & Company

In this important decision, the Supreme Court of Canada confirmed that the duty of Crown governments to consult and accommodate First Nations when making land and resource use decisions extends to decisions that negatively affect their treaty rights.

In this case, the Crown proposed to build a winter road through Treaty 8 surrendered lands of the Mikisew Cree.  The Court held that all the parties to Treaty 8 contemplated that, from time to time, portions of the surrendered land over which the Mikisew had hunting, trapping and fishing rights would be “taken up” for other purposes.  The authority for the “taking up” of lands in Treaty 8, did not, however discharge the Crown’s duty to act honourably. Where, as in this case, the “taking up” would adversely impact treaty hunting and trapping rights, the duty to consult was triggered.

Given that the winter road was built on surrendered lands and not permanent in nature, the Court held that the duty to consult was on the lower end of the spectrum.  The federal Crown was required to provide notice and information to the Mikisew, and to engage directly with to respond to their concerns.  The Crown had, instead, merely provided the Mikisew with notice.   The Court unanimously set aside the road approval on the basis that the Crown had not adequately consulted with the Mikisew.

Mikisew Cree First Nation v. Canada [2001] FCC

Gitanyow v. Canada [1999] BCSC

Delgamuukw v. British Columbia [1997] SCC

Delgamuukw v. British Columbia (1996), 153 D.L.R. (4th) 189 (S.C.C.)
By Braker and Company and Hutchins, Soroka & Grant from the BC Aboriginal Fisheries Commission, First Nations and Water Use Planning Committee Legal Analysis (Chapter 15 - Summary of Major Cases)

This is a decision of the Supreme Court of Canada. The Court confirmed that aboriginal title is protected as a constitutional right of First Nations within section 35 of the Constitution Act, 1982. In this case, the Court set out a test for proof of title, and it discussed in general terms the content of title, as well as how the Sparrow test for infringement and justification would apply to aboriginal title. The Court did not decide that the Gitksan and Wet'suwet'en peoples had aboriginal title -that issue was sent back to trial.

The significance of the case is in terms of the Court's recognition of the nature and scope of aboriginal title as a section 35 right, if it is proven in court or settled and defined through negotiations. The Court said that aboriginal title gives First Nations broad rights to manage their lands, the right to "choose to what uses lands may be put," and that title has an "inescapable economic component." The right to choose how lands can be used may be a hint that the Court is prepared, in the right case, to recognize self-government rights related to title.

The Court expanded the test for infringement and justification of rights, saying that title, like commercial fishing rights, required the Sparrow priorities and test for justification to be modified. The Court set out a number of bases upon which, in the right circumstances, infringement of title could be justified, such as in relation to certain types of economic development and other bases such as settlement of foreign populations, regional and economic fairness, etc.

The Court also held that the Crown must consult in a meaningful way with respect to infringement of title and that, in some instances, the consent of a First Nation may be required, such as where the province passes legislation or regulations affecting hunting or fishing. The idea of consent is related to title, and does not appear to form part of the analysis for infringement of rights short of title.

Case: R. v. Sparrow [1990] SCC

R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (S.C.C.)
By Braker and Company and Hutchins, Soroka & Grant from the BC Aboriginal Fisheries Commission, First Nations and Water Use Planning Committee Legal Analysis (Chapter 15 - Summary of Major Cases)

This was the first decision of the Supreme Court of Canada to interpret section 35 of the Constitution Act, 1982. In this case, the Court applied the principles of fiduciary duty developed in Guerin to section 35 to say that the honour of the Crown is at stake in dealings between government and First Nations and that where a law or regulation infringes an aboriginal right, the Crown must meet a test to justify that infringement. A number of principles of law were developed by the Court:

• Section 35 protects "existing" aboriginal rights - those rights still in force and not extinguished prior to 1982, when the provision came into force;
• In order to show that an aboriginal right has been extinguished, the Crown must prove a "clear and plain intention" to extinguish - regulations over a long period of time, or non-exercise of a right, will not meet this test;
• Aboriginal rights are not "frozen" in time and can be exercised in a modern form, and not only in the way they were exercised prior to European contact;
• Aboriginal rights are collective in nature and are sui generis (of their own kind) and must be interpreted as such, and not by referring to common law property concepts;
• The Court developed a test to determine if a right has been infringed, and whether the infringement can be justified. Once a First Nation proves a right (see Van der Peet for requirements to prove a right and Delgamuukw for proof of title), and the Crown fails to prove that the right has been extinguished, the onus is on the First Nation to show infringement of the right. They can do this by proving one or more of the following: (1) Is the limitation on the right unreasonable? (2) Does the regulation impose undue hardship? (3) Does the regulation deny to the holder of the aboriginal right their preferred means of exercising that right? If infringement is proven, the onus shifts to the Crown to justify the infringement. Here, the honour of the Crown is at stake. The Crown must meet all of the following requirements to justify an infringement of the right: (1) There is a valid legislative objective for the interference; (2) In the case of fishing, the allocation of priorities after conservation measures have been taken, gives top priority to the Indian right to fish for food, social and ceremonial purposes; (3) That there has been as little infringement as possible to effect the desired conservation result; and (4) That, where required, there has been compensation, and that the aboriginal group in question has been consulted with respect to the conservation measures being taken. Consultation has been expanded in other cases to deal with any action which can infringe rights or title.

Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2005 B.C.C.A. 128
By Jeanie Lanine, Woodward & Company

In this case, the British Columbia Court of Appeal considered the Province’s duty to consult and accommodate the Musqueam prior to authorizing the sale of Crown lands, used as a golf course, to the University of British Columbia.  The Musqueam asserted that they had a strong case to title over the lands, that their current land base was inadequate to meet the needs of their growing membership, and that few alternative parcels of Crown land were available to satisfy any treaty settlement.

The Court found that the duty owed to the Musqueam was at the higher end of the consultation spectrum, the consultation had come too late, and the provincial Crown breached its constitutional duty to accommodate the Musqueam Indian Band’s rights when it authorized the sale of the lands.  The government could not sell Crown lands subject to Aboriginal title without consultation and accommodation if exercising such power would leave little, if any, public land available to be granted to the band as part of a treaty settlement. 

The operation of the Order in Council authorizing the sale of the land to the university was suspended for a period of two years in order to allow the parties time to attempt to negotiate an accommodation agreement.

Musqueam Indian Band v. Richmond (City) 2005 BCSC 1069
By Jeanie Lanine, Woodward & Company

At issue in this case was the decision of the B.C. Lottery Corporation (a Crown corporation) to move a casino to Crown lands subject to an Aboriginal title claim by the Musqueam. 

The Court held that government was aware of the title claim through previous consultation processes and placing the casino on the lands could negatively impact the Musqueam’s Aboriginal title interests. The Court referred to the limited amount of Crown land available to meet the Musqueam First Nation's title claims, and held that the Crown had a duty to consult and accommodate.  Government could not rely on the limited consultation requirements set out in the Gaming Control Act to discharge this duty.  

The Court concluded that it was not appropriate to set aside the decision to move the casino, as it would result in the closing of the casino and consequential damage.  The harm suffered by the Musqueam could be compensated for in other ways. The Court issued a declaration that the Crown had a duty to consult and suggested that the parties could assess the strength of the claim and the appropriate scope and content of the duty to consult and accommodate.  If the parties could not reach agreement they would be able to return to Court.

Homalco Indian Band v. British Columbia (Minister of Agriculture, Food and Fisheries), 2005 B.C.S.C. 283
By Jeanie Lanine, Woodward & Company

The Homalco Indian Band applied for judicial review of a provincial decision approving an amended aquaculture licence to allow the farming of non-native Atlantic salmon. The Holmalco asserted that the government had failed to consult adequately and that the farming of Atlantic salmon posed a significant health risk to wild salmon and, consequently, to their Aboriginal fishing rights.

The British Columbia Supreme Court found that the government had actual knowledge of the claims of the Homalco, in part based on information provided through the treaty process.  The Court held that there was reasonable probability that the Homalco would be able to establish Aboriginal title to a portion of the coastal waters, and a strong probability that the Homalco had an Aboriginal right to fish for wild salmon in the area.  Faced with conflicting scientific reports, the Court declined to rule on the potential negative impact posed by the farming of Atlantic salmon.  The Court found that the level of consultation required was in the middle of the spectrum, and that government ought to have met with the Homalco to determine the possibility of reasonable accommodation of the Homalco’s concerns.

The Court granted the Homalco a partial injunction preventing the stocking additional Atlantic salmon smolts to allow time for the parties to engage in consultation, but did not require the removal of existing Atlantic salmon smolts from the fish farm.

Case: R. v. Marshall [1999] SCC

R. v. Marshall, [1999] 4 C.N.L.R. 161 (S.C.C.)
By Braker and Company and Hutchins, Soroka & Grant from the BC Aboriginal Fisheries Commission, First Nations and Water Use Planning Committee Legal Analysis (Chapter 15 - Summary of Major Cases)

This was a decision of the Supreme Court of Canada interpreting a 1760-61 treaty signed with the Mi'kmaq. The major points decided by the Court were that:

• "Extrinsic" evidence of the historical and cultural context of a treaty (evidence beyond the words of the treaty) can be used to interpret the meaning and understanding of the parties. This is so even where there is no "ambiguity" on the face of the treaty;
• The Crown cannot ignore the oral terms of the treaty and the understanding of the Indians and simply rely on the written treaty language;
• The honour of the Crown requires that a treaty be interpreted in a way which would allow for meaningful exercise of the rights in the treaty; and
• In the context of the facts of this particular case, there was a treaty right to obtain "necessaries" or a "moderate livelihood" through hunting and fishing by trading the products of those traditional activities, subject to any restrictions that can be justified by the Crown under the Sparrow test.

R. v. Gladstone (1996), 137 D.L.R. (4th) 648 (S.C.C.)
By Braker and Company and Hutchins, Soroka & Grant from the BC Aboriginal Fisheries Commission, First Nations and Water Use Planning Committee Legal Analysis (Chapter 15 - Summary of Major Cases)

This was a decision of the Supreme Court of Canada where the issue was whether section 20(3) of the Pacific Herring Fishery Regulations, which prohibited the sale of any herring spawn on kelp without a proper license, was invalid, because it violated the aboriginal rights of the appellants. The majority decision of the Court recognized and endorsed the findings of the trial judge that commercial trade in herring spawn on kelp had been an integral part of the distinctive culture of the Heiltsuk people prior to European contact. The evidence presented at trial established that such trade was not an incidental activity for the Heiltsuk but rather a central and defining feature of their society.

Besides recognizing a commercial right of sale, what is most important about this case is that the Court modified the test in Sparrow for justifying an infringement of aboriginal rights. The Court said that because the right in this case had no internal limitation like the right to fish for food, ceremonial and social purposes in Sparrow, that the priority developed in Sparrow could be altered where commercial fishing rights were at stake. The Court set out a number of bases upon which the Crown could justify an infringement, or at least alter the priorities, such as on the basis of the pursuit of economic and regional fairness, and the historical reliance upon, and participation in the fishery by non-aboriginal groups. The Court said that the government must demonstrate both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interests of aboriginal rights holders in the fishery.

Case: R. v. Van der Peet [1996] SCC

R. v. Van der Peet (1996), 137 D.L.R. (4th) 289 (S.C.C.)
By Braker and Company and Hutchins, Soroka & Grant from the BC Aboriginal Fisheries Commission, First Nations and Water Use Planning Committee Legal Analysis (Chapter 15 - Summary of Major Cases)

This is a decision of the Supreme Court of Canada. The Court held that a member of the Sto:lo First Nation, who was charged with illegally selling fish, did not have an aboriginal right to sell fish. The Court said that the right to exchange fish for money or other goods had not been proven. The main significance of the case is that, for the first time, the Court set out a test for proving the existence of aboriginal rights protected by section 35 of the Constitution Act, 1982.

The Court said that, in order to be recognized as an aboriginal right, an activity must be "an element of a custom, practice or tradition integral to the distinctive culture of the aboriginal group claiming the right." The Court set out a number of factors which must be considered in terms of proof of the right. The main factors are the following:

• Courts must take into account the perspective of aboriginal people themselves-but the perspective must be framed in terms cognizable to the Canadian legal and constitutional structure;
• Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right. In order to characterize the claim properly, the nature of the action which the applicant is claiming was done pursuant to an aboriginal right must be considered, the nature of the government regulation, statute or action being impugned must be considered, and the tradition, practice or custom being relied on to establish the right must be considered;
• In order to be integral, a practice, custom or tradition must be of central significance to the aboriginal society in question;
• The practices, customs or traditions which constitute aboriginal rights are those which have continuity with the traditions, customs and practices that existed prior to European contact;
• Claims to aboriginal rights must be adjudicated on a specific rather than a general basis;and
• For a custom, practice, or tradition to constitute an aboriginal right, it must be of independent significance to the aboriginal culture in which it exists.