March 10, 2016 By: Alex Keenan
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Nelligan O'Brien Payne gratefully acknowledges the contribution of Suzanne Dunn, Student-at-Law in writing this blog post.

Natural resource and other development on Indigenous peoples' territories is nothing new – but their communities’ rights, and the remedies available to them, are constantly evolving. A community’s ability to respond effectively to development pressures will depend on how well its leadership understands the process of consultation and responds to that process strategically.

This article explores some of the "ins and outs" of consultation, and provides insights from recent case law that will help communities make decisions about resource development in their territories.

The duty to consult

When

The Crown – which includes the federal and provincial governments – has a legal duty to consult with Indigenous peoples when it is considering a course of action that could negatively impact Aboriginal rights, treaty rights or Aboriginal title (for the purpose of this article we’ll call them all "Indigenous rights").

The duty to consult is often triggered by a request for one or more permits to carry out a project. The Crown must assess whether the project could affect any Indigenous rights. If so, it must consult with the relevant Indigenous groups and, in some cases, accommodate their interests.

In order to trigger the duty to consult, an impact on an Indigenous right must be more than speculative and must be tied to specific land or a specific project. For example, a mineral exploration permit may not trigger the duty if the exploration is not likely to be invasive. However, the duty may arise later if the proponent (the business, industry or other party carrying out the activity) discovers a mineral deposit and asks for a permit to mine in the area.

What

The depth of consultation will depend on the strength of the group’s claim to an Indigenous right and the extent to which that right could be affected by the government action or by the cumulative effects of that action and others over time.

In some cases, the duty may simply be to listen to the Indigenous group’s point of view and take it into account. In others, the Indigenous group will be entitled to accommodation, such as compensation or changes to the proposal, or both. Finally, although the implications of the Supreme Court of Canada’s 2014 decision in Tsilhqot’in Nation v. British Columbia have yet to be fully explored, that case suggests that some developments may require the consent of any group that has established Aboriginal title to the land.

Who

Consultation is the responsibility of the government whose actions may impact the Indigenous right in question. For example, mining permits are granted by provincial governments, whereas matters involving fisheries or inter-provincial projects often require permission from the federal government.

A government may delegate certain procedural aspects of the duty to consult, such as requiring the proponent to engage in discussions with First Nations and report on the outcomes. The federal and provincial governments may also try to avoid duplication by performing joint consultation or assigning procedural tasks to only one government. However, each of them is responsible for making sure that adequate consultation takes place with respect to the matters under its jurisdiction. It cannot wash its hands of that responsibility.

How

Consultation may occur in a variety of ways. Two common practices are environmental impact assessments (EIAs or EAs) conducted by the Crown or one of its agencies, and impact benefit agreements (IBAs) negotiated between proponents and Indigenous groups.

During an EA, the Crown collects information about the project and its potential environmental, social, cultural and economic impacts. It then decides whether to reject the project or to approve it and grant the required permits, with or without conditions.

Federal and provincial legislation sets out the circumstances where an EA is required, how it is to be carried out, who is entitled to participate, and what factors must be considered.

Indigenous communities that may be affected by a project are typically entitled to participate in an EA, both to communicate their concerns about the project’s impacts and, in some cases, to contribute their traditional knowledge about the area, its ecology, and their cultural heritage.

There may be a federal EA, a provincial one, or both, depending on the nature of the project. Alternatively, a single EA may be conducted to meet both the federal and provincial requirements. However, before issuing permits for the project, each participating government must consider the EA’s findings, ensure that Indigenous groups have been adequately consulted, and impose any conditions that it believes are necessary.

A proponent may also engage in consultation directly, often by negotiating an IBA in which the proponent agrees to make compromises and give benefits to an Indigenous group in exchange for their consent to the project.

An IBA may be negotiated before, during or after an EA. It will usually include measures to minimize the negative impacts of the project, while also providing the Indigenous community with benefits such as employment, training, education and compensation for any negative effects that cannot be avoided.

A good IBA will include measures that are suitable to all parties. In addition to bringing more certainty to the permitting process, it can benefit an Indigenous community that wants more control over the project’s outcomes than it would otherwise have if it left all the decision-making to the Crown.

Remedies

If a project is approved without sufficient consultation, affected Indigenous groups have several legal remedies available to them. Different remedies can often be used in combination, and a lawyer can help develop a strategy to best achieve the community’s goals.

First, affected Indigenous groups may be able seek judicial review of a decision to approve a project.

They could also apply to a court for a declaration that the Crown has not fulfilled its duty to consult and for any remedies that are appropriate in the circumstances. If the application comes too late to quash the decision, such as when a legal limitation period has passed, a court may still make a declaration without granting other remedies. This kind of declaration may provide the community with leverage in future negotiations.

Finally, an Indigenous group may request an injunction to stop the proponent from moving ahead with the project until the duty to consult has been fulfilled, or until a court decides whether the consultation and accommodation was sufficient in the circumstances.

In deciding whether to grant an injunction, the court will consider:

(a)    Whether the Indigenous group raises a serious question about the adequacy of consultation;

(b)   Whether an Indigenous right could be harmed by the project in a way that could not be remedied after the fact; and

(c)    Whether the harm to the Indigenous rights outweighs the harm that the proponent and general public would suffer if the work stops (such as financial costs and loss of jobs).

At the third stage of this test, the court will consider factors such as the amount of time and money the proponent has put into the project; how important the project is for the local economy and local employment; the importance of the Indigenous right and the likelihood of serious harm; and the behaviour of the parties.

For example, if the proponent has invested a great deal of money in the project while ignoring an Indigenous group that has requested consultation, a court is more likely to grant the injunction. On the other hand, if the Indigenous community waited so long to take action that the proponent had good reason to believe that it was safe to begin the project, then the injunction is likely to be refused.

Strategy

There are strategic considerations that can be taken away from the principles described above. When faced with the possibility of resource development on its territory, an Indigenous community would do well to keep the following points in mind:

  1. Be proactive. If the community is not invited to participate in a consultation process, it can and should request consultation from the proponent and whichever government is involved in the project. Persistence is key – and so is keeping careful records of all communication. If a legal dispute arises down the road, it can be to the community’s advantage to show that it tried to engage in discussions but the other parties did not respond appropriately.
     
  2. Know what you know – and what you don’t. In order to ensure that the level of consultation is appropriate and the outcome will be sustainable in the long term, it helps to have a good sense of the Indigenous rights that could be affected by a project, and whether a court has already recognized those rights or would be likely to do so. Knowledge about the project and its potential impacts is extremely important. If a lot of information is available from the outset, the community has the most leverage in negotiations before an EA has taken place (and the Crown has granted any permits). On the other hand, if the impacts of the project are unknown, it can be difficult to negotiate a favourable agreement.
     
  3. Seek funding. Consultation can be expensive and time-consuming. Proponents are often responsible for helping Indigenous communities with the resources to participate in consultation, and the government may provide assistance as well. Discussions about funding should take place early in the process. The parties should establish what expertise they need, what other expenses will arise, who is responsible for the costs, and what happens if the process goes over budget.
     
  4. Be flexible. Courts expect give-and-take from everyone involved, including the Indigenous groups. They have refused to grant injunctions in cases where the government and proponent were willing to negotiate but the Indigenous community, in the court’s eyes, was taking a hard line without justification. Willingness to compromise on certain issues can go a long way. Of course, there may be some issues where compromise is simply not acceptable. In those cases, it is important to explain and justify the community’s decision. These discussions can be an opportunity to educate others about the community’s perspectives and values.

It is never too early for a community to start thinking about how development projects could affect its way of life, and how it will respond when they arise. The duty to consult exists for the benefit of Indigenous peoples, but there is no question that those who have a plan will benefit the most.

Contact Indigenous Law lawyer Alex Keenan by email at alex.keenan@nelligan.ca or by phone at 613-683-8115. For more articles on topics related to Indigenous Law, please click here. Interested in reading more? Check out our other Indigenous Law articles.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Indigenous Law