eCaseNote 2014 No. 06

The Duty to Consult First Nations: A Never-Ending Story?

West Moberly First Nations v. British Columbia (Chief Inspector of Mines) 2014 BCSC 924;
Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48

Natural resource projects involving land that is subject to a historical treaty necessitates a slightly different standard of accommodation and consultation. These lands have been, effectively, passed to the Crown in exchange for a host of promises. By no means is the duty to consult First Nations eradicated where a treaty exists. Rather, a different set of legal principles and considerations come into account. Modern-day treaties take the form of comprehensive land-claims agreements between First Nations and governments that set out the respective rights, duties, and obligations with respect to the territory in question. As such, any question of consultation and accommodation must be framed within these agreements.

The Decisions

Two recent court cases, West Moberly First Nations v. British Columbia (Chief Inspector of Mines) and Grassy Narrows First Nation v. Ontario (Natural Resources) illustrate the principles at play in consultation and accommodation on treaty lands. In both cases the lands were subject to a treaty, and authorization was given by the Crown to proceed with a natural resource project. The First Nations petitioned the courts to halt the development, citing a lack of consultation and accommodation on the project.

It is clear from the jurisprudence that there is always a duty to consult and accommodate, regardless of whether or not the land is subject to a treaty. The Crown has a duty to look at the project, and assess its potential impact on the First Nation, and give adequate consultation and accommodation to the First Nation in assessing whether to give the green light for development. Even in the context of a treaty, the Crown cannot contract out of its fiduciary duty to Aboriginal peoples, and must meet its duties. This is done to ensure that Aboriginal rights are respected, including the right to hunt and fish.

The level of accommodation and consultation, however, varies from project to project, and when ascertaining an appropriate level of consultation, due regard must be made towards the specific text of the treaty. In the West Moberly decision, the British Columbia Supreme Court held that the test to determine if there is adequate consultation is:

  1. Whether the Crown acted honourably throughout; and
  2. Whether there was meaningful and extensive exchange of information such that the substance of the matter was fully explored and understood by all sides.”

Further, it is clear that consultation is a two-way exercise between the Province and the First Nations, and, at times, a First Nation may have discussions directly with a proponent of a project. However, these cases make it clear that consultation is not unlimited; it must be determined, not whether there could have been another meeting, but whether some important piece of information was unshared or whether a reasonable request was ignored.

Take-away Points

These decisions attempt to clarify the Crown’s duty to consult, and emphasize the importance of having a meaningful exchange of information that addresses reasonable requests and concerns. However, they also set some limits. Although there can always be more meetings and discussions, consultation cannot go on forever. Consultation must consist of a two-way exchange of information between the First Nation and the Crown, but that does not mean that the First Nation has a veto power over any project.

The comments contained in this eCaseNote provide general information only and should not be construed as legal advice or opinion. For more information or specific advice on matters of interest, please call our offices at (709) 579-2081.