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Indigenous - Duty to Consult (3). Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks)
In Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a JR brought by an indigenous organization that challenged statutory and regulatory amendment that modified Environmental Assessment Act (EAA) law.
Here the court extensively reviews the indigenous 'duty to consult', and when it applies:The Duty to Consult
[64] The Supreme Court’s decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 is the starting point for the Crown’s duty to consult and accommodate arising from s. 35(1) of the Constitution Act, 1982. Haida Nation involved a logging licence to cut trees on land subject to an Aboriginal title claim. No treaty rights applied because the land was unceded.
[65] The issue in Haida Nation was whether the Crown’s asserted sovereignty to use resources as it chose could proceed as normal pending proof and resolution of the Aboriginal title claim or whether the Crown had to adjust its conduct. McLachlin C.J., speaking for a unanimous court, answered that the Crown “cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued”: Haida Nation, at para. 27. The honour of the Crown entails a duty to consult and accommodate “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”: Haida Nation, at para. 35.
[66] McLachlin C.J., again on behalf of a unanimous court, fleshed out this statement of the duty to consult in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650. At paras. 31 and 51, she broke the question of when a duty to consult arises from Haida Nation into three elements:i. The Crown must have knowledge, actual or constructive, of potential Aboriginal claims or rights;
ii. The Crown must propose conduct or a decision that concerns the Aboriginal claims or rights; and
iii. That conduct or decision must have a potentially adverse impact on the Aboriginal claims or rights. This last element requires that the claimant demonstrate a causal connection between the proposed Crown conduct and the potentially adverse impact. [67] Below, I describe the principles of law relevant to each of the three elements.
i. Crown Knowledge of a Potential Claim or Right
[68] The threshold for whether the Crown has real or constructive knowledge of a potential claim to resources or land is not high: Rio Tinto, at paras. 40, 51. The Crown has actual knowledge when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted: Rio Tinto, at para. 40. As a party to a treaty, the Crown always has notice of its contents: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 34.
[69] Constructive knowledge arises when an impact on Aboriginal rights may reasonably be anticipated. A credible claim suffices to trigger a duty to consult and accommodate. Even “[t]enuous claims, for which a strong prima facie case is absent” may still attract a duty: Rio Tinto, at para. 40. As McLachlin C.J. stated in Haida Nation, at para. 37, and repeated in Rio Tinto, at para. 40: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…. 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. [70] While the merits of the claim need not be strong, the nature of the claim must be reasonably precise. In Haida Nation, McLachlin C.J. acknowledged, at para. 36, that meaningful discussion of accommodation of a right requires “some idea of the core of that right and its modern scope”. Thus, the claimants must “outline their claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements”: Haida Nation, at para. 36. More recently in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, at para. 80, McLachlin C.J. affirmed that “defining the elements of [their] claim with clarity” is an “obligation” of the claimants, noting that the duty to consult is a “two-way street”.
[71] Accordingly, the mere assertion that the Crown may entrench upon unclear Aboriginal interests or Aboriginal interests in general will not engage the duty to consult: see e.g., Mi’kmaq of P.E.I. v. Province of P.E.I., 2019 PECA 26, at paras. 47, 64, 119-120, leave to appeal refused, 2020 CanLII 29404 (S.C.C.). The court cannot conduct the duty to consult analysis without an understanding of the specific rights involved.
[72] I return to the issue of whether the appellants have sufficiently identified the Aboriginal right or claim they assert is detrimentally affected when I discuss the specific areas of concern arising from the revocation of MNR-75 that they have identified.
ii. Contemplated Crown Conduct
[73] For a duty to consult to arise, there must be Crown conduct or a Crown decision that engages the potential Aboriginal or treaty rights identified at the first stage of the analysis. “Crown” conduct, for duty to consult purposes, refers to the conduct of the executive, not the legislature: Mikisew Cree #2, at paras. 27, 50 (per Karakatsanis), 102, 128, 133 (per Brown J.), 148, 152 (per Rowe J.)
[74] Mikisew Cree #2 held that the duty to consult applies “to the process by which subordinate legislation (such as regulations or rules) is adopted, as such conduct is clearly executive rather than parliamentary”: at para. 51 (per Karakatsanis J., for herself, Wagner C.J. and Gascon J.).[6] Neither party disputes that this proposition applies with respect to the revocation of MNR-75, which I therefore conclude constituted contemplated Crown conduct for the purposes of the duty to consult analysis.
iii. Potential Adverse Impacts
[75] The third element of the duty to consult inquiry concerns whether the contemplated Crown conduct identified at the second stage of the analysis had any potentially adverse effects on the Aboriginal or treaty rights identified at the first stage. As McLachlin C.J. stated at para. 45 of Rio Tinto:The third element of a duty to consult is the possibility that the Crown conduct may affect the Aboriginal claim or right. The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights. Past wrongs, including previous breaches of the duty to consult, do not suffice. [76] Thus, the focus of the inquiry is on the current government conduct or decision in question: Rio Tinto, at para. 49. This is an important consideration in the case at bar where historical distrust of the MNRF as a regulator is raised as evidence of potential harm. Standing alone, past wrongs are insufficient to show a causal relationship between the current Crown conduct and a present potential for adverse impacts on Aboriginal rights.
[77] While a generous and purposive approach to this element is required, “mere speculative impacts” will not suffice: Rio Tinto, at para. 46. Other appellate courts have interpreted the meaning of “mere speculative impacts” as follows:. The impact “must be more than speculative” – it must have “some appreciable and current potential to adversely impact the substance of a claimed right”: Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31, [2015] 7 W.W.R. 82, at para. 90 (emphasis in original).
. There is a distinction between harms that are concretely possible and harms that are speculative – “[a]n impact that is, at best, indirect, that may or may not happen at all (such that we cannot estimate any sort of probability), and that can be fully addressed later is one that falls on the speculative side of the line, the side that does not trigger the duty to consult”: Hupacasath First Nation v. Canada (Minister of Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737, at paras. 99 to 105. [78] Strategic, high-level decisions raise particular issues as to whether a duty to consult arises.
[79] In Buffalo River, the court considered whether the issuance of an oil sand exploration permit triggered a duty to consult. The permit had no obvious or immediate impact on Aboriginal or treaty rights. However, the applicant argued that the permit would inform future mineral access and exploitation decisions that could adversely affect Aboriginal or treaty rights. The applicant therefore submitted that a duty to consult should arise with respect to the antecedent step of the exploration permit, rather than to any eventual decision on access and exploitation.
[80] The Saskatchewan Court of Appeal rejected the applicant’s position as premature and found that the evidence showed a “well-defined and linear regulatory process” that required consultation at later stages: Buffalo River, at para. 87. The court explained further, at paras. 93-94, how a broad challenge to a regulatory process could not meet the causal relationship required to trigger the duty to consult:The Crown does not suggest oil sands exploration (let alone oil sands development) will proceed without good faith consultation with every affected Aboriginal group—it simply says Buffalo River DN’s application to force it [to] do so is premature. I agree; it is premature because, at this first stage in the regulatory process, there is simply no evidence that could have been tendered to show a causal relationship between the decision to issue the [exploration permits] and the speculative future adverse impact of oil sands exploration and development on Buffalo River DN’s rights under Treaty 10.
I do not accept that the Court can simply assume the Crown will unfairly prioritize mineral resource exploration and development over protection of treaty rights. Nevertheless, if the Crown did so in breach [of] its obligations under Treaty 10, then Buffalo River DN would have full opportunity to hold the Crown to account before the courts by seeking a remedy for the Crown’s failure. [81] However, Crown decisions or conduct need not have an “immediate impact” to trigger a duty to consult – it is sufficient for the decision or conduct to have a “potential for adverse impact”.[7] Thus, strategic decisions that affect a regulatory regime in a manner that threatens to reduce an Indigenous community’s ability to participate in decision-making that may have an impact on its protected rights will be subject to a duty to consult: Chartrand, at para. 71.
[82] In Rio Tinto, the court explained, at para. 47, that under the third element of the inquiry, high-level resource management decisions or structural changes to resource management are reviewed to see if they “may set the stage for further decisions that will have a direct adverse impact on land and resources”: Rio Tinto, at para. 47 (emphasis in original). The example that McLachlin C.J. gives in Rio Tinto is the Crown transferring power over a resource to a private party in a way that removes or reduces the Crown’s power to ensure that the resource is developed in a way that respects Aboriginal interests. She did not find the Crown conduct in issue rose to this level despite B.C. having entered into a joint agreement with Rio Tinto Alcan to manage a reservoir that could impact the claimant’s fisheries. The joint management did not trigger the duty to consult because B.C. remained involved and future conduct that could impact an Aboriginal right would thus be subject to a duty to consult.
[83] In Mikisew Cree #2, Rowe J. (concurring) further commented on what was meant by “strategic, higher-level decision” at para. 158. He observed that the removal of a layer of oversight from an environmental regulatory scheme is not itself an adverse effect on a s. 35(1) right, especially where regulation in a modified form continues:While Bills C-38 (enacted as Jobs, Growth and Long Term Prosperity Act, S.C. 2012, c. 19) and C-45 (enacted as Jobs and Growth Act, 2012, S.C. 2012, c. 31) modified the regulatory framework for certain waterways, the use of those waters was not thereby returned to a situation of laissez-faire. Environmental regulation, provincial and territorial as well as federal, continues to apply. The appellants submit that the reduction in federal environmental oversight “profoundly affects” treaty rights by removing an environmental assessment process that would trigger the duty to consult…. However, this is not the type of adverse effect that was contemplated in Haida Nation and subsequent jurisprudence. What is protected by s. 35 is the Aboriginal or treaty right itself. A specific set of arrangements for environmental regulation is not equivalent to a s. 35 right, and in particular is not equivalent to the treaty right relied on by the Mikisew in this case. As this Court stated in Rio Tinto: “the definition of what constitutes an adverse effect [does not] extend to adverse impacts on the negotiating position of an Aboriginal group” (para. 50). The adverse impact must be to the future exercise of the right itself (para. 46). [Emphasis in original.] [84] This observation reinforces what the Supreme Court previously recognized in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 45: while the duty to consult has a strong environmental component, “the consultative inquiry is not properly into environmental effects per se.” See also Jack Woodward, Aboriginal Law in Canada (Thomson Reuters – looseleaf), at § 5:33. . Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks)
In Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a JR brought by an indigenous organization that challenged statutory and regulatory amendment that modified Environmental Assessment Act (EAA) law.
Here the court considers whether the indigenous 'duty to consult' applies to statutory amendments (it didn't):[1] On June 25, 2020, Ontario[1] revoked MNR-75, a regulation pertaining to forest management planning that had been enacted under the Environmental Assessment Act, R.S.O. 1990, c. E.18 (the “EAA”). Ontario then exempted forest management in certain parts of Ontario from the purview of the EAA, effective July 1, 2020.[2] Finally, on July 21, 2020, the Ontario legislature passed Bill 197[3], making amendments to the EAA that:i. removed the presumption that public undertakings will be subject to environmental assessments;
ii. granted the Minister of the Environment, Conservation and Parks (“MECP”) discretion to designate which projects will be subject to environmental assessment; and
iii. for certain activities, granted exemptions from otherwise applicable environmental assessment procedures. ....
[7] I agree with the Divisional Court that Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765 (“Mikisew Cree #2”) precludes any finding that a duty to consult arises in the law-making process except, perhaps, in very limited circumstances, none of which were applicable in this case.
....
(1) The Enactment of Bill 197 Without Consultation
[44] The appellants submit that the Divisional Court erred in holding that Mikisew Cree #2 disposed of its claim that their exclusion from deliberations on Bill 197 implicated the honour of the Crown. They submit that the Divisional Court took too narrow of a view, considering this claim only from the perspective of whether the Crown had a duty to consult the appellants during the law-making process. The honour of the Crown is broader than the duty to consult. It requires the Crown to act honourably in its dealings with Indigenous peoples, irrespective of the duty to consult. The appellants argue not that their exclusion from the law-making process dishonoured the Crown, but that the Crown’s unilateral termination of consultations to which it had committed itself by Ministers’ statements and the EBR did so, as did the retroactive exemption of Bill 197 from the EBR’s consultation requirements. The appellants argue that this point was not in issue – and therefore not addressed – in Mikisew Cree #2.
[45] The appellants also argue that Greenpeace does not dispose of this claim. In that case, environmental activists unsuccessfully challenged Ontario’s decision to retroactively exempt amendments to environmental legislation from the EBR’s consultation requirements. The applicants in that case were not Indigenous and they neither did nor could advance a claim predicated on the honour of the Crown.
[46] I do not accept these arguments. The honour of the Crown is an interpretive principle, not a freestanding cause of action. It informs how the Crown must observe certain obligations – including its fiduciary duties with respect to Aboriginal interests and its treaty and statutory commitments to Indigenous peoples – but it does not itself form one of those obligations: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 73. The question we must answer is therefore whether Ontario’s decision to abandon its consultation efforts on Bill 197 engaged any Crown obligation to which the honour of the Crown could attach.
[47] Although there are four sets of reasons in Mikisew Cree #2, the majority view can fairly be taken to be that the duty to consult does not apply to “the law-making process”: at paras. 1-2 (per Karakatsanis J.), 135 (per Brown J.), 150 (per Rowe J.). If Bill 197 adversely impacts any Aboriginal interests protected under s. 35(1) of the Constitution Act, 1982, the proper avenue for redress is a constitutional challenge to the legislation according to the framework set out in R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075: Mikisew Cree #2, at paras. 31, 48 (per Karakatsanis J.), 145 (per Brown J.), 151-52 (per Rowe J.).
[48] If the duty to consult does not apply to the process of enacting Bill 197, could it arise because a representative of the government said there would be consultations before passing the legislation? In my view, this argument is not tenable. The appellants do not argue that a statement that consultation will occur rises to the level of a recognized s. 35(1) obligation to which the honour of the Crown attaches.
[49] Nor do I see how, if law-making is exempt from the duty to consult, the honour of the Crown is engaged when that law-making is aimed at changing legislative provisions which previously contemplated consultation about legislation.
[50] It is difficult to see how Ontario’s conduct leading up to the passage of Bill 197 advances reconciliation. But that is not the question we have to decide. Despite Ontario’s conduct leading up to the passage of Bill 197, I see no right which implicates the honour of the Crown on the facts presented.
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