Overview of developments in the law of the duty to consult and accommodate since the Supreme Court of Canada's decision in Tsilhqot'in.

1. Tsilhqot’in & Consultation
Vancouver
October 29, 2015

2. Overview
• Tsilhqot’in and Consultation
• Triggering Consultation
• Treaties—Duty to Consult or Infringement
• Processes for Consultation
• Delegation of Consultation

3. Tsilhqot’in & Consultation
• Importance of territorial claims for Aboriginal
title
• Possibility of cancelled authorizations &
damages
• Consent based consultation

4. Triggering the duty to consult
The issues based on Rio Tinto include:
• Are new physical impacts required to trigger the
duty?
• What constitutes a causal link between the decision
or conduct and the alleged impact?
• When is an alleged impact non-appreciable and
merely speculative?

5. Buffalo River Dene Nation, SKCA
• JR of exploration dispositions for subsurface oil sands
and minerals
• To be more than speculative, a Crown decision or
conduct had to have “some appreciable and current
potential to adversely impact” a claimed right; here
there was no “appreciable or current impact” (90)
• “If adverse impacts are not possible until after a later-
in-time, independent decision, then it is that later
decision that triggers the duty to consult.” (104)
Contrary to Kwikwetlem BCCA.

6. Ballantyne v Canada, SKQB
• Claim for breach of the honour of the Crown, breach of
fiduciary duty and trespass
• The FN argued that the construction and operation of
the dam triggered a duty to consult at the time it was
authorized as well as an ongoing obligation because of
adverse impacts on hunting, fishing and trapping;
• Court rejected this as a new or novel impact because it
was occurring on the same land regardless of how the
dam was operated (43 see also 76)

7. Huron-Wendat Nation, FC
• Challenge to an agreement in principle between Canada
and Innu First Nations.
• The court should take a generous, purposive approach to
deciding whether there a causal relationship between
conduct or decision and a potential for adverse impacts
(102).
• It was obvious that the AIP “created a dynamic and raised
expectations” (103)
• Court agreed with Sambaa K’e that the “inevitable
impact” of signing the AIP

8. Da’naxda’xw/Awaetlala, BCSC
• First Nation alleged that BC had failed to live up to
its commitment to provide them with the
opportunity to secure a electricity purchase
agreement
• Regarding triggering and ‘past wrongs” the Court
held that there was a “causal relationship between
the government conduct and the potential for
adverse impacts.” That was sufficient to answer the
Province’s arguments based on Rio Tinto (240)

9. Taku River, BCSC
• Question of whether the mine had been “substantially
started” in order to finalize the Environmental Assessment
Certificate
• Held that the decision would directly affect what
happened at the site
• A no decision would mean there would be no
development
• A yes decision meant that the EAC would be in effect for
the life of the project.

10. Courtoreille, FC
• Mikisew Cree challenge to the federal Omnibus bills
assented to in 2012
• While "no actual harm has been shown but that is
not the point." On the evidence there was "a
sufficient potential risk to the fishing and trapping
rights" to trigger the duty to consult (93).
• Re the Navigation Protection Act amendments: a
"reasonable person would expect that a reduction in
the number of waterways monitored carries with it
the potential risk of harm." (101)

11. Courtoreille continued
• The amendments to the Fisheries Act "clearly
increases the risk of harm to fish." (101).
• The Court held that in introducing the bills the FN
should have been given notice "in respect to those
provisions that reasonably might have been expected
to possibly impact" on their treaty rights (103)

12. Hupacasath. FCA
• Hupacasath challenge to Foreign Investment Protection
Agreement (FIPA) between Canada and China.
• Duty to consult being aimed at "preventing a present,
real possibility of harm caused by dishonourable
conduct that cannot be addressed later“ (83)
• There needed to be the prospect of a decision
prompted by the agreement as well as the ability to
estimate the probability of the decision adversely
affecting an Aboriginal right (99)

13. Fort Nelson First Nation, BCSC
• Triggering of environmental assessment for fracking
gravel pit
• Court also rejected argument that duty not triggered
b/c effects speculative & it was not a high level
strategic decision
• rejected a narrow view that ignored that fact 5 more
pits were planned

14. Chartrand, BCCA
• removal of private land from TFL and renewal of
forestry plan
• rejected narrow view of impacts
• impact on ability to participate in decision-
making sufficient to trigger duty
• high-level effects can be enough to trigger
requirement for deep-consultation

15. Treaties
• To what degree must government decision-making
respect the processes laid down in modern treaties?
• Duty to consult and so-called ‘historic’ treaties
• Duty to consult or justifying infringement?

16. Corporation Makivik c. Québec , QCCA
• Prov gov’s arbitrary changes to James Bay Agreement
hunting regulations
• Prov didn’t have a veto over the Coordinating Committee’s
advice
• Both parties were “obligated to discuss, reconcile and
compromise”
• Gov taking advantage of majority on committee would not
sit well with honour of the Crown

17. Nacho Nyak Dun v. Yukon, YKSC
• Relied on Beckman for the treaty interpretation
principle of 'equality between the parties' (149)
• Yukon had to respect the land use planning process
under the treaty and participate in a collaborative,
consultative and iterative process (154-55)
• Yukon’s process did not enhance the goal of
reconciliation; was based on an ungenerous
interpretation of the treaty inconsistent with the
honour and integrity of the Crown (182)
• The requirement was for an "open and inclusive"
process; "exchange or dialogue“

18. Treaties and Decision-Making
• Participation in decision making/exercising jurisdiction
• Chartrand -- sufficient to trigger duty to consult
• In Hupacasath the Court acknowledged that if there was
evidence of impacts on self-government rights the FN
would have legal recourse (109).

19. Treaties & Land Interests
• Buffalo River interest in the land was not at issue
• In Wabauskang Court rejected the argument out of hand
• In Chartrand court said interest based on asserted
Aboriginal title did trigger duty

20. Yahey, BCSC
• Infringement/Consultation
• Blueberry River, Treaty 8
• Infringement of treaty rights
• Injunctive relief
• Court—not a ‘tipping point’
• Concerned about ‘piece-meal’ injunctions

21. Prophet River, BCSC & FC
• Challenge to Site C Dam EAC and CEAA 2012 approval.
• Issue of whether required Sparrow/Badger infringement
analysis or Mikisew duty to consult
• JR’s unsuitable for infringement—requires a trial
• In contrast to Makivik at Quebec Court of Appeal

22. Inadequate Consultation Processes
• When is consultation insufficient?
• Limits of environmental assessment processes

23. Yellowknives, FCA
• JR re land use planning and cumulative effects
• Piece-meal infringement of Aboriginal rights & treaty
rights
• Difficulty for FN to get effective remedies on JRs

24. Fort Nelson First Nation, BCSC
• Fracking gravel pit judicial review
• Whether ‘production capacity’ triggered an EA
• Province accepted ‘proponent driven’ process
• Court: province must be held to higher standard b/c
constitutional rights involved

25. Chartrand, BCCA
• Court held that BCSC had taken narrow/technical approach
to assessing consultation
• Duty to consult cases are not a run-of-the-mill JR
• Assessment of duy must be informed by honour of the
Crown and fulfillment of constitutional obligations
• First Nation can’t be faulted for refusing to participate in
inadequate process

26. Long Plain, FCA
• Emphasized concepts of “honour, reconciliation, and
fair dealing”
• Canada had taken an overly narrow/technical view of
its obligations
• Court emphasized the constitutional import of the
process

27. Nacho Nyak Dun v. Yukon, YKSC
• Yukon was expected to act honourably and respect its
treaty obligations.
• It was obliged to interpret its constitutional obligations
"broadly and purposively rather than narrowly”

28. Delegation of Duty to Consult
• Wabauskang, ONSC
• Fort McKay, ABQ
• In both, the court concluded that the duty to consult
was not improperly delegated to the proponent.
• The courts did not set out when the line is crossed
between delegating procedural aspects of
consultation and substantive consultation

29. Where to Next?
• Hopefully triggering arguments are settled
• Governments held to higher standards of consultation
• More consultation on jurisdiction/decision-making & land
interests
• More focus on treaty rights
• Consent based consultation

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31. List of Cases
• Adam v. Canada, 2014 FC 1185
• Buffalo River Dene Nation v. Saskatchewan, 2015 SKCA 31
• Canada v. Long Plain First Nation, 2015 FCA 177
• Chartrand v. British Columbia, 2015 BCCA 345
• Corporation Makivik c. Québec (Procureure générale), 2014 QCCA 1455
• Courtoreille v. Canada (Aboriginal Affairs and Northern Development),
2014 FC 1244
• Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power
Authority, 2015 BCSC 16
• Fort McKay First Nation v. Alberta (Minister of Environment and
Sustainable Resource Development), 2014 ABQB 393

32. List of Cases
• Fort Nelson First Nation v. British Columbia, 2015 BCSC 1180
• Haida Nation v. DFO, 2015 FC 290
• Hupacasath v. Canada, 2015 FCA 4
• Huron-Wendat Nation of Wendake v. Canada, 2014 FC 1154
• NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46
• Peter Ballantyne Cree Nation v. Canada (Attorney General), 2014 SKQB 327
• Pimicikamak v. Manitoba, 2014 MBQB 143
• Prophet River First Nation v. British Columbia, 2015 BCSC 1682
• Prophet River v. Canada, 2015 FC 1030
• Tlicho Government v. Canada, 2015 NWTSC 9

33. List of Cases
• Sam v. British Columbia, 2014 BCSC 1783
• Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto, 2015 BCCA 154
• Sapotaweyak Cree Nation v. Manitoba, 2015 MBQB 35
• The First Nation of Nacho Nyak Dun v. Yukon, 2014 YKSC 69
• Taku River Tlingit First Nation v. British Columbia (Minister of Environment),
2014 BCSC 1278
• Wabauskang First Nation v. Minister of Northern Development and Mines,
2014 ONSC 4424
• Yahey v. British Columbia, 2015 BCSC 1302