The Duty To Consult: A Novel Approach To Enduring Principles

The Federal Court of Appeal (the "FCA") recently released its unanimous decision in Canada v Long Plain First Nation, which suggests a shift in the way the Canadian courts might approach the duty to consult in First Nation land claims. There are three elements of the decision which may show a departure from existing law and merit attention in such cases. First, the FCA drew a distinction between the way commercial contracts are interpreted and the way contracts between the Crown and First Nation bands are interpreted, owing to considerations unique to the relationship between the Crown and First Nation bands. Second, the FCA raised again the possibility that non-agent Crown Corporations may owe a duty to consult. Third, the FCA opined that the administrative law procedural fairness framework may be used to evaluate the duty to consult where it arises on judicial review.

Also interesting is the final comment provided by the FCA in a Postscript, emphasizing that consultation in such matters is not a one-way street. All parties must actively engage in the process and act to advance their respective rights in a prompt and conciliatory way. The Court warned that uncooperative and recalcitrant conduct exposes the parties to risk. Finally, the Court made a plea for the parties to set aside whatever rancour, bitterness and mistrust may have existed in the past and proceed to engage in constructive, respectful consultations for the benefit of all.

Background and Overview

In August, 2015, the FCA decided the appeal of an application for judicial review brought by several First Nation bands after the Government of Canada ("Canada") transferred 160 acres of land in Winnipeg, namely the Kapyong Barracks, to the Canada Lands Company ("Canada Lands"), a non-agent Crown corporation. The Federal Court below found that Canada had a duty to consult four of the First Nation bands (Long Plain First Nation, Peguis First Nation, Roseau River Anishinabe First Nation, and Swan Lake First Nation) prior to the sale of the Kapyong Barracks to Canada Lands. The Federal Court found there was no duty to consult two of the First Nation bands (Sagkeeng First Nation and Sandy Bay Ojibway First Nation) since their claims had not been made out at the time of the application. Canada appealed the decision and the two unsuccessful applicants cross-appealed. The FCA agreed with the Federal Court on the cross-appeal issue and the focus of the FCA judgment was on the remaining four...