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Indigenous Law - Duty to Consult
MORE CASES
Part 2
. Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks) [for numbered case cites see the Canlii case]
In Mississauga First Nation v. Ontario (Minister of the Environment, Conservation and Parks) (Div Court, 2022) the Divisional Court considered the duty to consult with respect to matters affecting indigenous people:B. Framework for the Duty to Consult and Accommodate
[13] In Haida Nation v. British Columbia (Minister of Forests),[6] the Supreme Court of Canada laid out a framework for the duty to consult and accommodate (the “duty”). The duty is grounded in the honour of the Crown.
[14] The honour of the Crown is a constitutional obligation. It is not a lofty ideal or a “mere incantation.”[7] It gives rise to specific obligations, which vary with the circumstance. The duty is one such obligation.[8]
[15] The duty has been found to arise in instances where statutory decision-makers act on behalf of the Crown in a way that may adversely affect s. 35 rights. The Supreme Court of Canada has described the duty as a “valuable adjunct” to the honour of the Crown. The duty ensures “the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s. 35 rights.”[9] The Crown conduct need not necessarily constitute an infringement of s. 35 rights. However, unilateral action that may adversely affect such rights may warrant intervention on judicial review.[10]
[16] The duty arises when the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it.[11] There are therefore three elements to the test: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.[12]
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[20] I conclude that the third element of the test is not satisfied. The PTTWs sought in this case do not constitute conduct that might adversely impact an Aboriginal claim or right. Instead, MFN is attempting to use the PTTW process to address the dams’ historical impacts. In addition, an overlapping regulatory regime remains in place such that the PTTW process is not the last remaining trigger to the dams’ ongoing operation.
1. Historical Impact of Dams
[21] MFN’s claim is an attempt to remedy the historical impact of the dams on the Mississagi River. MFN alleges that Ontario built and operated the dams starting over 50 years ago without regard to the importance of the Mississagi River watershed to its rights, culture and way of life, and without consulting or accommodating MFN for the dams’ impacts. MFN started raising the alleged impacts with Ontario as early as the 1990s. These impacts include the destruction of fisheries, the destruction of village sites on the riverbank, and reductions in the populations of waterfowl, native fish species, and other animals. MFN states in its factum that “[m]any of these impacts are permanent and ongoing; they did not just occur once then disappear. Yet still today MFN has never been accommodated for these serious and ongoing impacts.”
[22] MFN has not shown any new impact caused by the PTTW process. In Carrier Sekani, the Supreme Court of Canada emphasized that the duty is forward-looking: “[p]ast wrongs, including previous breaches of the duty to consult, do not suffice.”[13] An “underlying or continuing breach, while remediable in other ways, is not an adverse impact” for the purposes of this analysis.[14] . Attawapiskat First Nation v. Ontario
In Attawapiskat First Nation v. Ontario (Div Ct, 2022) the Divisional Court considers the Crown's duty to consult (and accomodate) with First Nations:[4] The duty to consult is an incident of the Honour of the Crown, which is engaged in any dealing between the Crown and First Nations. The duty is constitutional in nature, and springs from the ongoing process of reconciliation, a process which is a moral, political and legal obligation of the Crown.
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[9] We also note that the process of reconciliation is ongoing in any context involving both the Crown and First Nations, including litigation. The Crown needs to be sensitive to its duty as it formulates and implements its litigation strategy, so that conflict resolution – whether before the courts or elsewhere – while still a manifestation of permissible “hard bargaining”, is not corrosive of the goal of reconciliation. In this case the respondents took a position they were entitled to take – that the applicant did not take steps reasonably open to it to provide relevant information to the Crown – but tinctured their arguments with allegations of lack of diligence and even lack of candour. This colour did not add force to the respondents’ arguments. The respondents are not dealing with a private party to which baser qualities ought to be imputed without very good reason. By way of analogy, this court would not impute such motives to a Minister of the Crown without strong evidence and a jurisprudential need to make the finding: such is the inherent deference paid by one branch of government to another. While the analogy is not exact, similar principles ought to be borne in mind in characterizing the conduct of First Nations in duty to consult cases.
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The Duty to Consult – The Applicable Principles
[66] The government’s duty to consult with Indigenous peoples is grounded in the principle of the honour of the Crown. In Haida Nation, at para. 17, the Supreme Court of Canada held that “[i]n all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”
[67] The honour of the Crown is engaged by s. 35 (1) of the Constitution Act, 1982. Because of its connection to s. 35, the honour of the Crown has been called a “constitutional principle.” Manitoba Métis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, 2013 SCC 14, at para. 69.
[68] The honour of the Crown is an obligation at the highest level; it requires that servants of the Crown conduct themselves with honour when acting on behalf of the sovereign: Manitoba Métis, at para. 65.
[69] In Manitoba Métis, at para. 75, the Supreme Court found that:when the issue is the implementation of a constitutional obligation to an Aboriginal people, the honour of the Crown requires that the Crown: (1) takes a broad purposive approach to the interpretation of the promise; and (2) acts diligently to fulfill it. [70] The Court went on to state that in determining what duties are imposed by the honour of the Crown, “[t]he question is simply this: Viewing the Crown’s conduct as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment of the purposes of this obligation?” Manitoba Métis, at para. 83.
[71] The honour of the Crown infuses treaty interpretation and implementation. The Crown “must act with honour and integrity, avoiding even the appearance of ‘sharp dealing[.]’” Haida Nation, at para. 19.
[72] The duty to consult is a “valuable adjunct to the honour of the Crown, but it plays a supporting role, and should not be viewed independently from its purpose.” Beckman v. Little Salmon/Carmacks First Nation, at para. 44.
[73] There are three aspects to the duty to consult: has the duty been triggered; what was the scope of the duty; and was the duty fulfilled?
[74] The duty to consult is triggered when the Crown has real or constructive knowledge of asserted or known Aboriginal or treaty rights and contemplates conduct that might adversely affect such rights: Haida Nation, at para. 35. In this case, the parties agree that the duty was triggered.
[75] The degree of consultation required falls on a spectrum and is proportionate to a preliminary assessment of the asserted or established right, and the seriousness of the potentially adverse effect upon the right claimed: Haida Nation, at paras. 35, 39, 43 [check].
[76] As a result, the Supreme Court of Canada has held that “[t]he controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake…” Haida Nation, at para. 45.
[77] The Crown must engage in consultation with the goal of “substantially addressing” the community’s concerns: Haida Nation, at para. 42; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69, para. 67. At the same time, the right to consultation is a right to a process, and not a particular outcome: Haida Nation, at para. 39.
[78] The result of good faith consultation may be a duty to accommodate, requiring that the Crown address a community’s concerns by taking steps to avoid harm or to minimize the effects of infringement, in a manner that is consistent with the honour of the Crown: Haida Nation, at paras. 47-50.
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[109] In some respects, the Crown took steps toward fulfilling its duty to consult and accommodate. It recognized a positive obligation to inform itself. For example, it anticipated that caribou migration, hunting and fishing might be issues even though it had no site-specific information about such matters. The Ministry asked Attawapiskat what it knew and got no information back. It was still asking for site specific information right up to a week before the permits were granted. Not only did the Ministry actively solicit concerns the applicant might have, it extended the time for voicing those concerns several times. In its letter of September 3, the Ministry reiterated its willingness to consider additional terms and conditions to attach to a permit.
[110] However, asking the right questions, and being prepared to consider the answers, is only part of the consultation process. The process that Ontario had an obligation to foster was the kind of “meaningful consultation” or “talking together for mutual understanding” (Haida Nation, at para. 43) that the duty to consult and accommodate envisages and requires. In this case, Ontario did not foster such a process appropriately. When the overall dealings among the parties is examined, the overall impression, from Attawapiskat’s reasonable perspective, is that pro forma letters were sent by Ontario and Juno, in January and February 2020, but no other effective communication took place until August 2020, by which time the Ministry imposed tight time constraints. If just a little more care and sensitivity had been taken, things could well have been different. But in the result, the consultation process that was followed here was corrosive of reconciliation rather than advancing it.
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[123] The correspondence between Ontario and Attawapiskat between February 11, 2020, when the Ministry forwarded the permit applications to Attawapiskat, and September 3, 2020 does not reflect the “intention of substantially addressing” Attawapiskat’s concerns: Haida Nation, at para. 42. We agree with Vella J.’s comment in Ginoogaming First Nation v. Ontario, 2021 ONSC 5866, at paras. 91-92, that letter writing was “an ineffective form of communication” because it did not adequately take into consideration the Indigenous cultural context. As a result, the letters sent by Ontario were not sufficient to constitute meaningful consultation. . Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks)
In Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks) (Div Court, 2022) the Divisional Court summarized the province's duty to consult with indigenous people:The Duty to Consult
[16] The duty to consult arises pursuant to s. 35 of the Constitution Act, 1982 when the Crown has knowledge, real or constructive, of the potential exercise of an Aboriginal right or title and contemplates conduct that might adversely affect that right or title (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 S.C.R. 511 at para. 35).
[17] The Supreme Court described the duty to consult in greater detail in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (CanLII), [2010] 2 S.C.R. 650:[40] To trigger the duty to consult, the Crown must have real or constructive knowledge of a claim to the resource or land to which it attaches: Haida Nation, at para. 35. The threshold, informed by the need to maintain the honour of the Crown, is not high. Actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, para. 34. Constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an Aboriginal community or an impact on rights may reasonably be anticipated. While the existence of a potential claim is essential, proof that the claim will succeed is not. What is required is a credible claim. Tenuous claims, for which a strong prima facie case is absent, may attract a mere duty of notice. As stated in Haida Nation, at para. 37:Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims, claims possessing a strong prima facie case, and established claims. [41] The claim or right must be one which actually exists and stands to be affected by the proposed government action. This flows from the fact that the purpose of consultation is to protect unproven or established rights from irreversible harm as the settlement negotiations proceed: Newman, at p. 30, citing Haida Nation, at paras. 27 and 33. The court continues [at paras 18-33] to find that the duty to consult did not apply on these facts, or alternatively that the duty was minimal and had been met.
. Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks)
In Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks) (Div Court, 2022), Corbett J in the Divisional Court (writing in a dissent but here concurring), stated JR standards of review for the government's duty to consult with indigenous people and related matters: Jurisdiction and Standard of Review
[6] This court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act.[12]
[7] Crown decisions as to whether there are duties to consult or accommodate are reviewable on a standard of correctness. The Crown’s assessments of the extent of these duties are generally questions of law, reviewable on a standard of correctness, because they define legal duties.[13] Thus if the Crown misconceives the seriousness of a claim or the impact of an infringement, this will be reviewable on a standard of correctness.[14] That said, “scoping” the duty to consult can involve questions of fact and, where it does, the Crown’s factual findings are reviewed on a standard of reasonableness.[15]
[8] The “effect of good faith consultation may be to reveal a duty to accommodate.”[16] The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness.[17] . Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks)
In Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks) (Div Court, 2022), Corbett J in the Divisional Court (writing in a dissent but here concurring), extensively considered the province's duty to consult with indigenous people in relation to the legislative process [paras 9-31, 35-39].
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