Natural resources proponents are often deeply involved in consultations with Aboriginal communities that may be affected by their projects. How far can the Crown delegate its constitutional duty to consult Aboriginal people to proponents?
The Crown’s Duty to Consult and to Accommodate And its Delegation
- Ever since the Supreme Court developed the concept of the Crown’s duty to consult and to accommodate Aboriginal people in the 1990s – and articulated this duty in its historic decision of Haida Nation in 2004, natural resources proponents have often de facto exercised that duty for projects which are likely to affect adversely Aboriginal interests. Reasons may include practicalities – proximity, better knowledge of the project, and also the scarcity of governmental resources to carry extensive consultations on behalf of the Crown.
- In Haida Nation, the Honourable Chief Justice McLachlin had indicated that: “The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments. […] However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated.”
- What the Supreme Court did not specify, however, is which procedural aspects of consultation may be delegated to third parties, and the permitted scope of this delegation.
The Ross River Dena Council Decision (Yukon)
- In late 2012, in Ross River Dena Council v. Government of Yukon,  YKCA 14, the Yukon Court of Appeal found that the government had a duty to consult in granting mineral rights on Crown lands to third parties.
- The Ross River Dena Council had strong claims to Aboriginal rights in some parts of their traditional territory. The government argued that because the recording of mining claims did not involve discretionary action, no duty to consult Aboriginals existed. Once a claim is recorded, the holder is allowed to undertake certain types of exploration activities without government approval.
- The court found that the honour of the Crown demanded that it take into account Aboriginal rights before divesting itself of control over public lands.
- The court further held that “The Crown must ensure that it maintains the ability to prevent or regulate activities where it is appropriate to do so”, including engaging into consultations with First Nations before exploration activities are allowed to take place.
- Implicit in this decision is that the Crown cannot delegate the essential aspects of its duty to consult to proponents – the Crown has to ensure upstream that proper consultation mechanisms are in place, even at the stages of mining claim recording and early exploration.
The Wahgoshig First Nation Decision (Ontario)
- In Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario,  ONSC 7708 (appeal dismissed as moot in Wahgoshig First Nation v. Solid Gold Resources Corp,  ONSC 632) the Crown had advised Solid Gold to consult the Wahgoshig First Nation regarding its intended mineral exploration program, and offered to facilitate the process. No consultation took place before Solid Gold started drilling.
- The Wahgoshig First Nation sought an injunction preventing Solid Gold to carry exploration on Treaty 9 Crown lands, which was granted by the Ontario Superior Court. The court ordered the parties to enter into “[…] bona fide dialogue and information sharing […], facilitated by the presence of the Crown”.
The Long Plain First Nation Decision (Manitoba)
- In Long Plain First Nation, and al. v. Her Majesty the Queen,  FC 1474, the federal government had argued in the context of a sale of Crown lands located in the City of Winnipeg subject to land claims, that the Aboriginals could take their concerns to the purchaser of the land, the Canada Land Company, a non-agent Crown Corporation.
- The Federal Court found that the Crown had failed to discharge its duty to consult Aboriginals and set aside the decision to sell the land.
Recent Legislative Changes
- Ontario recently legislatively addressed the question of Aboriginal consultations at the early exploration stages of mining projects by changes to the Mining Act of Ontario, which came into force on November 1, 2012, and implementing regulations came into effect on April 1, 2013.
- Under the new scheme, holders of mining claims are required to provide exploration plans to the director of exploration. Under such plans, exploration activities shall be carried in a manner consistent with Aboriginal rights.
- The aim of the new legislative scheme is to ensure the Crown’s compliance with its duty to consult at the exploratory stage of a mining project.
- However, this does not solve the issue of the respective obligations of the Crown and of proponents in the actual consultation process.
- Recent case law on the delegation of the duty to consult sends a strong signal that the Crown cannot delegate its duty to consult by the back door.
- If the Crown delegates aspects of the Aboriginal consultation process, it should guarantee that measures are in place to ensure that appropriate and meaningful consultations take place.
- In the end, the Crown remains accountable for the consultation process.