Duty To Consult Case Overview 2014

In 2014 there were over twenty court decisions across Canada related to the duty of federal, provincial and territorial governments to consult with and accommodate First Nations.

The Supreme Court of Canada released two significant decisions: Tsilhqot'in Nation v. British Columbia1, and Grassy Narrows First Nation v. Ontario (Natural Resources)2. Although these judgments addressed broader Aboriginal law issues, both articulated important principles that will significantly influence the interpretation of the duty to consult and accommodate in the future, both in the courts and in practice.

In the lower courts there were a number of notable developments in this growing body of the common law. Key themes of 2014 included the relationship between the duty to consult and First Nation economic interests, the legislative process, delegation of consultation responsibilities, and the application of broader administrative law principles. Courts also expressed concern about the imbalance between the Crown agents and First Nations to adequately resource consultation processes.

Tsilhqot'in addressed the duty to consult and accommodate in relation to proven Aboriginal title lands. In such cases, the duty is at the highest end of the spectrum and puts a heavy burden on the Crown to justify title infringement when a First Nation doesn't consent to development. In situations where title has been proven, the honor of the Crown elevates to a fiduciary duty. If title is proven after a permit is issued, the permit may be revoked. The Court stated that provincial governments can infringe Aboriginal title lands, but there must be express legislative authority to do so, and further, that there are inherent limits to infringement.

In Grassy Narrows, the Court similarly found that a province can infringe Treaty rights, but it must demonstrably uphold the honour of the Crown at all times. The court also expressed an inherent limit on infringement- it can't go beyond a point that leaves the First Nation with no meaningful ability to practice its traditional ways of life.

In the cases of Squamish Nation v. British Columbia (Community, Sport and Culture Development)3 and Ehattesaht v. British Columbia (Forests, Lands and Natural Resource Operations)4the British Columbia Supreme Court found that potential adverse impacts to a First Nation's economic interests triggered the duty to consult and accommodate. While the Court has previously recognized a duty to consult with...