Aboriginal Consultation And Project Development

INTRODUCTION TO THE LAW OF ABORIGINAL RIGHTS AND THE DUTY TO CONSULT

In Canada, most major resource projects undertaken to develop natural resources occur on public lands (also referred to as Crown lands) administered by federal, provincial or territorial governments, depending on their location. In respect of most, if not all, of these Crown lands, there is potential for the existence of aboriginal rights in respect of the lands or at least claims to such rights. Section 35(1) of the Constitution Act, 1982 provides that "existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby affirmed".

Aboriginal and treaty rights cover a very broad range of rights and have a number of different sources. Delgamuukw v British Columbia1 defined the concepts of aboriginal rights and aboriginal title at common law. Aboriginal title is a communal right in land to use land for various activities, that may include practices, customs and traditions related to the cultures of aboriginal societies, but may also be for modern purposes or uses, so long as such uses are not inconsistent with the aboriginal groups' attachment to the land and its use by future generations of aboriginal peoples.2 Aboriginal title provides the exclusive right to use and occupy lands.3 Aboriginal title also includes mineral rights to lands, as well as the right to exploit minerals,4 as long as such exploitation does not destroy the value of the land for traditional uses that form the basis of the establishment of such aboriginal title.5

Aboriginal title is established by proving exclusive occupation of specified lands at the time the Crown first asserted sovereignty over such lands. In the event that exclusive occupation cannot be shown, aboriginal rights to engage in particular activities over specified lands may still be established. In order to prove such aboriginal rights, the activities in respect of the land had to be practiced at the time of first European contact with the aboriginal group.6 In most cases, this will be earlier than the time of the assertion of Crown sovereignty over such lands.

Aboriginal rights, including aboriginal title, can only be extinguished by or surrendered to the federal government or Crown.7 The provinces or territories cannot, either expressly or through their actions, extinguish aboriginal rights or title.8 The most common form of extinguishment and possibly the only form of extinguishment available since the enactment of Section 35(1) of the Constitution Act, 1982, is through treaty or land claims settlement processes. Through these processes, common law aboriginal rights and title can be surrendered to the federal Crown by way of agreement, in return for more traditional forms of fee simple title to specified reserve lands or settlement lands, the continued right to exercise traditional practices over specified areas of surrendered lands and, in most cases, various forms and amounts of compensation.

One of the most challenging aspects of new project developments undertaken by the natural resource industry is to reconcile aboriginal and treaty rights, whether existing or asserted, with the use and occupation of public lands necessary to conduct a project's operations. Generally speaking, all levels of government involved in authorizing these operations have preferred to see industry project proponents come to terms with any aboriginal groups whose rights could be affected by the project's operations. This reconciliation takes place at a practical level and most often results in agreements directly between affected aboriginal groups and industry. However, success in reaching agreements often depends on the existence of a formal reconciliation process that is available and can be resorted to in the absence of industry being able to come to terms with affected aboriginal groups. Further, in some cases, industry is not able to complete agreements with some aboriginal groups, which then requires resorting to processes whereby the government engages aboriginal groups in these more formal reconciliation processes to facilitate project development in the face of opposition from aboriginal groups.

Canadian courts have developed the principle of the honour of the Crown, which must be met if a government intends to authorize resource development activities that could adversely affect aboriginal rights or their exercise. The courts have developed a considerable body of law addressing the government or Crown "duty to consult" with aboriginal groups regarding impacts which government approvals of industry activities could have on aboriginal rights.

In the case of Haida Nation v British Columbia (Minister of Forests)9 and Taku River Tlingit First Nation v British Columbia (Project Assessment Director),10 the Supreme Court provided guidance regarding the content of the Crown's duty to consult and, when required, accommodate aboriginal rights, even though such rights may be asserted but not proven. In these cases, the Supreme Court considered challenges to decisions by the Government of British Columbia to replace tree farm licences (in Haida) and to issue a Project Approval Certificate to reopen a mine and construct an access road (in Taku River). In both of these cases, the aboriginal groups involved had asserted, but not yet proven, claims to rights and title in the areas where the forestry and mining activities were to be conducted.

In Haida and Taku River, the Court held that the Crown's duty to consult arises not only where there is a prima facie infringement of an aboriginal right which has been proven to exist, but also where there is the potential for adverse effects on asserted, but not yet proven, aboriginal rights. Where an aboriginal right is asserted but remains unproven, the Crown must manage resources in claimed areas in a manner consistent with the honour of the Crown.11 This may require the Crown to consult with affected aboriginal groups and, in some circumstances, accommodate their interests. The affected aboriginal groups do not have a veto over the uses to which the lands under claim can be put, but a balancing of interests is still required. Aboriginal groups may express their position on proposed projects or land uses. The Crown must consider these positions and potentially accommodate them, where appropriate,12 but it is not bound to follow the recommendations or desires of the aboriginal groups involved.13

In Haida, the Court held that the duty to consult arises when "... the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that may adversely affect it."14 Given that the Crown's obligation to consult with aboriginal groups arises when the government has knowledge of the potential existence of the aboriginal right or title claimed, and is contemplating action that may adversely affect such interests, the Court in Haida stated that the aboriginal group should clearly outline its claims, focusing on the types of rights they assert and the alleged impacts on them. Although no duty was imposed on aboriginal groups to provide detailed information on the nature of the claims they assert, good faith in the consultation process is required, not only on the part of the government, but also on the part of the aboriginal groups involved. Aboriginal groups must not take unreasonable positions to impede decision-making processes which, despite meaningful consultation, may still not result in agreement or consent on the part of the aboriginal group.

The scope of consultation required will depend on the circumstances of each case. In the Haida case, the Court identified a spectrum where at one end, minimal consultation would be required if the claim to the aboriginal right is weak or the potential for adverse effects is minor. In such cases, the duty to consult may be limited to providing notice of a proposed activity and information to the aboriginal group regarding the anticipated government action, while addressing any specific questions that the aboriginal group raises in response to the notice.15 At the other end of the spectrum, significant consultation is required where a strong prima facie case is established for an asserted right and the potential for impacts on the right could be highly significant to the aboriginal group. In these circumstances, significantly deeper consultation is required. Even where deep consultation is required, achieving an agreement or consent is not necessary in order for the honour of the Government or Crown to be met.16

In Haida, the Supreme Court also found that accommodation may be required.17 The type of accommodation described by the Court was a process of attempting to avoid irreparable harm to the interests of aboriginal groups and minimize impacts of future activities pending resolution of claims of aboriginal groups. The scope of accommodation can be very broad. Accommodation, for example, can require changes to the project's scope or design and can commonly include conditions attached to...