On August 28, 2014, the Ontario Divisional Court released its decision in Wabauskang First Nation v. Minister of Northern Development and Mines et al.[1] In its decision, the Court provided guidance on the issue of delegation of the duty to consult. It also confirmed that there is no Treaty 3 right of First Nation signatories to resource-sharing and decision-making.

Background

Wabauskang First Nation ("Wabauskang") brought an application to judicially review the decision of the Ministry of Northern Development and Mines' Director of Mine Rehabilitation acknowledging the production closure plan ("Closure Plan") of Rubicon Minerals Corporation ("Rubicon") regarding its Phoenix Gold Project. Wabauskang asserted that Ontario failed to adequately consult and accommodate the First Nation by improperly delegating to the Company the Crown's constitutional duty to consult and accommodate. Wabauskang's application was dismissed.

Wabauskang is a signatory to Treaty 3. The Company was engaged in advanced exploration. The site of the Phoenix Gold Project had been subject to exploration and mining for many decades. Rubicon initially submitted the Closure Plan in February 2011. By the time of submission, the Company had completed an archaeological assessment and represented to the Director that it had made significant efforts to engage and consult with Wabauskang. The Company ultimately withdrew the Closure Plan to provide Wabauskang with additional time to consider the Plan and a further opportunity to identify any Aboriginal or treaty rights that could be impacted. 

The Plan was re-submitted in mid-October 2011 and acknowledged. Various communications and meetings among the Company, Wabauskang and the Ministry of Northern Development and Mines ("MNDM") took place in the intervening months. The Company funded a third party review of environmental issues by an independent expert. The Company revised its Closure Plan to address concerns raised by Wabauskang and in the third party review, including mitigation measures.

In parallel, the Company and Wabauskang engaged in discussions with a view to reaching an impact and benefits agreement. These negotiations were not successful by the time of the Director's decision.

Decision

On the legal issues of the duty to consult, including the delegation to a proponent, the Divisional Court applied the seminal case of Haida Nation v. British Columbia (Ministry of Forest).[2] The Court concluded that: (a) the "institutional process" established by MNDM to assess the potential or actual impact of a claim of an Aboriginal or treaty claim was reasonable; (b) the MNDM assessment that "standard consultation" applied in the circumstances was reasonable; (c) MNDM acted reasonably in reassessing the potential impact to a Wabauskang Aboriginal or treaty right claim when new information was obtained; (d) MNDM consistently conducted itself in accordance with its acknowledged duty to consult and accommodate; (e) MNDM did not delegate improperly to the Company; and (f) MNDM satisfied its duty to consult Wabauskang regarding the acknowledgement of the Closure Plan.

Implications

Certain findings of the Divisional Court will be of particular interest to industry. First Nations in Ontario have asserted an expanding and broad scope of treaty rights and entitlements. The Court did not accept the proposition that Treaty 3 granted an express or implied entitlement that the signatories share decision-making and revenue-sharing of the surrendered lands with the Crown. Accordingly, MNDM did not have a duty to consult and accommodate Wabauskang respecting those issues.[3] Treaty 9, for example, is similar in language to Treaty 3.

There has been little juridical guidance on what constitutes procedural aspects of the constitutional duty owed by the Crown which may be properly "delegated" to companies and relied upon by the Crown in satisfying its duty. Given the nature and the scope of items characterized by the Court as "procedural", the Court appears to accept that all the direct engagement and consultation with Aboriginal communities can be conducted by the company so long as the Crown ensures that the company conducts such engagement and consultation "appropriately". What will be specifically required by the Crown may vary on a case by case basis. The province also may choose to "delegate" the costs of the so-called procedural aspects to the company. This decision may be viewed by industry as imposing an inappropriate, disproportionate and unfair burden on companies. 

Supreme Court jurisprudence is clear, however, that the honour of the Crown cannot be delegated. The corollary is that a company owes no constitutional duty to consult. Like Weyerhaeuser in Haida, Rubicon would not have been subjected to a remedy even if the Court had concluded that the Crown had failed to consult Wabauskang.[4] 

Other notable aspects of the decision are the following:

  1. The fact that MNDM was not participating in all meetings, discussions and negotiations between Rubicon and Wabauskang (often at the request of the First Nation) was not fatal to Ontario being able to fulfill its duty;
  2. The Court found that MNDM demonstrated responsibility for consultation by "discouraging Rubicon from filing the PCP [Closure Plan] and/or encouraging its withdrawal to afford WFN sufficient time to articulate its concerns". This should not be read as endorsing such conduct where, for example, an Aboriginal community is not engaging with a proponent or the Crown on a timely basis or at all;
  3. The Court appears to have taken some comfort by the fact that "decision makers" were at the negotiating table. From a practical and economic perspective, it should not be expected that the president of a company will attend all meetings. Query whether the Court would have taken issue if the person designated as responsible for Aboriginal community engagement was the company representative leading the consultation, not the president as here; and
  4.  The Court confirmed the principles established by Haida, and confirmed by Mikisew, that consultation does not constitute a veto for First Nations.