The Ontario Divisional Court recently released its decision in Attawapiskat First Nation v Ontario. Among other things, the Court addresses the issue of funding consultation in the early exploration context.
In January 2020, Juno Corp. (“Juno”) applied to the Ministry of Northern Development, Mines, Natural Resources, and Forestry (the “Ministry”) for two early mineral exploration permits on lands covered by Treaty 9 (the “Project Lands”). The Project Lands are located within the area known as the “Ring of Fire”. They also fall within the Attawapiskat First Nation (“Attawapiskat”) traditional territory, approximately 250 kilometers west of the community.
Juno’s intended early exploration activities included nine locations of mechanized drilling (East Block) and 50 locations of mechanized drilling and 20 geophysical surveys (Jupiter Block) on its mining claims. The diameter of the drill holes would be the size of a soda can. Attawapiskat’s traditional territory is over 100,000 square kilometers.
Juno applied for the permits on January 22, 2020. On September 8, 2020, after a temporary hold on the application by the Ministry’s Director of Exploration (the “Director”), the Director issued the permits. Attawapiskat commenced a judicial review application to quash the permits on the basis that the Ministry failed to satisfy its duty to consult and accommodate it.
The Funding Issue
Attawapiskat asserted that the Crown’s duty to consult and accommodate was not satisfied because funding for certain studies was not provided prior to the issuance of the permits.
Shortly after the permit applications were received, the Director wrote to the Chief and Council requesting that Attawapiskat identify concerns about potential adverse impacts to its Aboriginal and Treaty Rights. Attawapiskat requested additional time to respond, which ultimately resulted in the temporary hold.
In late August 2020, Attawapiskat stated that it required a targeted archaeological assessment and a traditional land use and occupancy study to provide details of the community’s rights and values in the Project Lands and needed funding to conduct these activities. Shortly thereafter, Attawapiskat informed the Ministry that the proposed early exploration activities would take place in a traditional harvesting area for members of an Attawapiskat family and that the Project Lands had important caribou, moose and fish habitat. When the Ministry asked Attawapiskat to provide additional information regarding the nature, location and timing of the identified family’s harvesting activities and the location of important habitat, Attawapiskat said that it could not provide such information without commissioning studies from third party consultants, for which it required funding. It also identified a concern around the cumulative effects of development in the Ring of Fire.
The Ministry’s assessment of the situation was that:
(a) its duty to consult fell on the low end of the consultation spectrum;
(b) Attawapiskat could rely on its previous land use planning and research, which included the Project Lands;
(c) given that consultation was on the low end, a targeted archaeological assessment and land use study was not necessary;
(d) the proposed early exploration activities were not expected to have significant or lasting cumulative effects in the area or to cause downstream impacts to any watersheds;
(e) formal studies were unnecessary since Attawapiskat had certain information regarding the harvesting activities and the effect of impact to those activities;
(f) the Ministry would work with Attawapiskat and the proponent to mitigate any potential adverse effects; and
(g) to mitigate potential adverse impacts, the Ministry would consider terms and conditions to the exploration permits.
Based on well-established jurisprudence, the degree of consultation required falls on a spectrum and is proportionate to a preliminary assessment of the asserted or established Aboriginal or Treaty right, and the seriousness of the potentially adverse effect upon such right. The Court agreed with the Crown’s assessment of scope, finding that the duty to consult was at the low end of the spectrum because of the minimal invasiveness of the proposed early exploration activities.
As set out in paragraph 102 of the decision, the Court noted that formal studies are not required every time there may be activity that adversely affects the environment or traditional practices.
It is not the case that substantial funding for research is required every time there is activity on lands covered by Treaty 9. If there is no reasonable basis to conclude that there is something requiring study, funding is not required.
Here, one family had been known to lay traplines in the general area of the Project Lands, but Atttawapiskat had no current information respecting that activity. With the information available to it, the Ministry determined that a costly formal study was not necessary, and the Court agreed.
Attawapiskat asserted that the Ministry had improperly shifted the onus to the First Nation by requiring further information before reassessing the scope of the duty. The Court rejected that argument stating that:
Implicit in this argument is a further argument that the Ministry cannot assess the scope of the duty to consult without first providing funding and time to obtain and provide research findings that could bear on the scope. We do not agree. Ontario was entitled to and required to scope the duty to consult on the basis of the information it had, including the information provided to it by Attawapiskat.
In some cases, it may be apparent that research is required to scope the duty to consult properly…Here, Ontario concluded, on the basis of the nature of the exploration, its understanding of the remoteness and inaccessibility of the lands, and the current jurisprudence, that the scope of the duty was low. The information that was provided by Attawapiskat did not change that assessment or provide a foundation for concluding that further research would have to be done to assess the scope.
Notwithstanding expert evidence filed by Attawapiskat, the Court also was not persuaded by the argument that a cumulative effects concern required further studies. In this regard, it stated as follows:
Our view [on the scope of the duty] is unaffected by Attawapiskat’s “high level” expert evidence about cumulative effects and potential impact on caribou herds. It is not enough, in the circumstances of this case, to raise more than general concerns about resource development. No information has been provided that these concerns, as they relate to these Projects, will impair Attawapiskat’s rights in respect to Treaty Lands. No information has been provided that any unanticipated impairments that, in fact, do arise, related to these Projects, cannot be addressed by suitable accommodation measures. We conclude that these high level concerns do not provide a foundation for requiring further study and research in respect to the permits. [emphasis added]
Although the Court found that the Crown’s decision not to fund the studies requested by Attawapiskat did not result in a breach of the duty to consult, it provided the following guidance around funding:
We are concerned that our finding not be extended rigidly in a future case. Funding decisions should not be reduced to a set of mechanical rules. The onus is on Ontario to reasonably assess whether funding is required for consultation to take place properly. In making this assessment, Ontario should seek input from the First Nation, as it did here. Ontario’s decision on this issue is not a matter solely of assessing Ontario’s response to demands for funding made by a First Nation - Ontario must look at the entire situation and then decide what is reasonable.
The Consultation Process
Despite its conclusions on the funding issue, the Court found that the Crown did not satisfy its duty to consult and to accommodate Attawapiskat by virtue of an insufficient consultation process which was “corrosive of reconciliation”.
In January 2020, Juno’s president contacted Attawapiskat stating he would be its “point of contact”. In February 2020, the Ministry contacted Attawapiskat and forwarded Juno’s permit applications requesting that Attawapiskat identify any concerns about the proposed exploration. The Ministry also stated it had delegated certain aspects of the consultation to Juno. However, unbeknownst to Attawapiskat, the Ministry had a new policy that all consultation was to be done directly with the Ministry, not with proponents. Attawapiskat attempted to contact Juno several times to negotiate an exploration agreement but Juno did not respond.
The Court found that the consultation process was insufficient, largely as a result of miscommunication around the role of Juno in the consultation process. The Court was critical of Juno for failing to communicate fully with Attawapiskat and the Ministry. It also was not pleased with the Ministry’s approach once it learned of the misunderstanding. As stated by the Court at paragraph 122:
From the perspective of Attawapiskat, what can be made of this process? It was invited to deal with Juno, by Juno. It was referred to the Ministry’s former policy, stating that dealings with a proponent were part of consultation. Juno then ignored communications from Attawapiskat and didn’t tell the Ministry about it. When the Ministry found out about it, it corrected the misunderstanding and then almost immediately told Attawapiskat that it had had sufficient time to respond and imposed a very short deadline. Attawapiskat could only be left with the impression that the Ministry was viewing the consultation process as a pro forma obligation.
While the Ministry failed to have met its duty to consult and to accommodate, the Court did not quash the exploration permits. In this regard, it stated, in part, as follows:
We wish to be clear that we view this as a matter of detail respecting conditions that could be attached to the permits, rather than a core issue related to whether the permits should issue at all. Judicial review invokes the Court’s equitable jurisdiction, and when it comes to matters of remedy, the Court takes a practical view of the overall circumstances. This failure in the discharge of the duty to consult and accommodate is minor, in the overall picture of the issues in this case, and it would simply be unreasonable to quash the permits and send the parties back to consult and accommodate further on this point, given the record before the Court now.
It is worth noting that the Court “censured” the Ministry for its litigation strategy, observing that the Ministry had “tinctured” its arguments with allegations of lack of diligence and candour on the part of the First Nation. The Court expressed the view that the principle of reconciliation should extend to 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.
The Divisional Court has made it clear that, in the context of a duty to consult, funding requests by First Nations must have a reasonable foundation and be proportionate to the nature and scale of the proposed activities. This decision will be welcomed by resource companies, which are more frequently facing requests by First Nations for extensive, time-consuming and costly land use studies as a “pre-cursor” to any early-stage exploration activity.
Although the duty to consult lies with the Crown, a proponent’s actions usually form part of the factual matrix in judicial challenges of Crown decision-making in this context. Open and frequent communications among the Crown, First Nations and the proponent are critical for meaningful consultation and reconciliation. This decision reinforces the importance of not only a proponent’s engagement with local First Nation communities, but its open and on-going dialogue with the Crown to ensure timely and adequate consultation.