Duty to Consult
You will note that in the final paragraphs excerpted from Tsilhqot’in Nation, the Supreme Court found that the Province of British Columbia breached its duty to consult with the Tsilhqot’in Nation prior to granting forestry licences to third parties on territorial lands. That duty was engaged when the Province began the planning process for removing timber on the land.
An important point here is that the Crown owed and breached its duty to consult with the Tsilhqot’in Nation well prior to the Tsilhqot’in Nation successfully proving their claim in the courts. This is a central purpose of the consultation doctrine: it engages the Crown’s fiduciary duty and the honour of the Crown in advance of litigation or negotiations to address claims to title, and therefore offers some measure of protection for title lands in light of the several legal and other barriers to successfully resolving such claims.
In Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, the Supreme Court of Canada first recognized the existance of the Crown’s constitutional duty to consult and accommodate. According to the Court in Haida Nation, “duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”
The Court in Haida Nation also recognized that the scope and content of the duty to consult will vary with the circumstances. It said the following:
Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61.
At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases…
When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim.