Creating the perfect storm for conflicts over Aboriginal Rights?

It will come as no surprise to anyone, anymore, that the Crown needs to consult Aboriginal groups when Crown decisions affect Aboriginal rights. What is surprising is, ten years after the Supreme Court’s Haida decision, there is the prospect for more and not less serious conflict over resource development where Aboriginal communities have rights.

Recent developments have escalated this risk, as noted in a paper I recently delivered entitled Creating the Perfect Storm for Conflicts Over Aboriginal Rights: Critical New Developments in the Law of Aboriginal Consultation.

The paper reviews three recent developments that may contribute to a perfect storm of conflicts over Aboriginal rights and resource development:

1.      Companies Getting Damages from the Crown for Failed Aboriginal Consultation While Aboriginal Groups Are Denied Remedies 

The recently released BCSC decision Moulton Contracting v BC is an interesting new development in the ongoing legal saga that started as Behn v Moulton. (For an analysis of the newest developments, see Judith Rae’s analysis).  Moulton successfully argued that their company should receive a $1.7 million award for economic losses caused by BC’s failure to properly consult the Fort Nelson First Nation about the impacts of Moulton’s timber license on the Behn family trapline. The Court found that the Province had a duty to consult the First Nation about the license and had not done so, and that the Province had an obligation to properly advise the company of unresolved Aboriginal consultation issues that could jeopardize business.

The resulting $1.7 million award to the company is ironic. Earlier in 2013, the Supreme Court’s decision denied the Behn family (whose trapline was affected) the right to rely on the duty to consult as a defence when procedural questions went all the way to the Supreme Court on a question of standing. The SCC found that the Behns as Aboriginal individuals could not rely on the collective Aboriginal rights, but that they did have individual treaty rights. The Court concluded, however, that raising the duty to consult as a defence would be “an abuse or process” because it would allow the Aboriginal protestors “self help remedies” that had economic cost to the company.

The case raises interesting questions about the economic rights of companies when the Crown fails to properly consult.  It increases the prospect that two Ontario mining companies – Solid Gold Resources and Northern Superior Resources, could succeed in their current lawsuit against the Province for $100 million and $110 million respectively. They, too, claim that the Crown’s failure to properly consult First Nations led to significant economic losses.

On the one hand, it seems unjust that a company can succeed in obtaining economic damages for failed Aboriginal consultation when many First Nations have achieved only “softer” remedies of orders obligating parties to go back and negotiate. The result must be a particularly bitter pill for the Behn family to swallow, as they watch the company Moulton receive a $1.7 million award based on a Crown obligation to consult about impacts on their family’s trapline, while they themselves were barred from relying on the duty to consult as a defence.

On the other hand, the decision will encourage the Crown to ensure that consultation failures do not occur, given the potential liability to corporations for the economic losses that could ensue. The case may also prove helpful to Aboriginal litigants, who can now rely on a Court precedent acknowledging and quantifying the economic losses of failed Aboriginal consultation.

2.      The Bad New Example of the Alberta Consultation Policy and Consultation Levy Act

A key challenge for Aboriginal consultation processes is ensuring that all parties know the “rules of the game.” Consultation processes vary widely from province to province, from one industry to another, and from project to project.  The desire for ‘certainty’ about the process is leading to increased Crown efforts, across the country, to standardize consultation processes. This can be very difficult, as the triggers, impacts and potential accommodation are often very fact-specific for a particular Aboriginal group and a particular project.

Alberta has recently attempted to impose stricter guidelines for consultation, through a new Consultation Policy and new legislation (the Aboriginal Consultation Levy Act). The Act obligates proponents to financially contribute to a Consultation Fund, which will then be topped up by the Province and used to fund Aboriginal consultation. Other jurisdictions are watching the Alberta model with interest.

There are benefits to a more defined process, and some of the underlying principles are laudable (such as clarity about proponent obligations to assist in funding consultation and a provincial role in ‘topping up’ that funding).

The process used to implement the new policy, however, as well as key aspects of the Policy, mean that the process is doomed to trigger extensive conflict between the Crown and First Nations.  The provincial government acted unilaterally to frame and implement the new legislation, excluding proper consultation with First Nations about the proper process and mechanisms. The Crown also has unilateral and non-appealable rights to determine consultation funding levels under the new Act, raising the risk of politicized decision-making (and penalizing of First Nations who do not ‘cooperate’ on this or other matters in the way that the Crown wants them to).  It is also problematic that the Policy’s determination of which Aboriginal rights trigger consultation (which are constrained to harvesting rights) and which types of decisions which are triggers (which do not include land leases or miner rights licenses), do not reflect the current case law on the duty to consult.

These and other gaps could have been addressed had there been mutual discussion between First Nations and the Crown about the mechanisms that will and will not work. For instance, some have suggested that an impartial and independent authority could be involved in determining whether and what levels of consultation are required and what will be funded under the new Policy and Act, rather than leaving these to become unilateral (and inevitably politicized) decisions by the Crown.

The new Policy and Act will create more uncertainty and conflict over Aboriginal consultation, not less. A number of First Nations are already commencing legal actions to challenge the legislation.

3.      The Link Between Gutting Environmental Assessment and Legal Challenges on Aboriginal Consultation

The federal government’s recent move to gut environmental assessment and other environmental protection legislation in 2012 and 2013 has been seriously harming Aboriginal consultation processes. (For an overview of the changes to the legislation, see OKT’s previous analysis in this blog).

The retrenching of robust environmental assessment also means, practically speaking, that processes are not in place to properly assess the impacts of projects on Aboriginal rights. EA processes have been used as key part of Aboriginal consultation procedures. While EA processes are not necessarily sufficient in and of themselves to discharge the Crown’s consultation obligations, on a practical level they provide key data and liaising opportunities that are also relevant to Aboriginal consultation. Stripping away the reviews that occur under EAs has the associated effect of also gutting the information available to the Crown about potential impacts on Aboriginal rights and forums for discussion about how to address those impacts.

The result is a recent and sharp increase in the amount of current litigation over large projects where Aboriginal consultation is required. (See, for example, the recently widely circulated media story, Alberta Oilsands Facing Aboriginal Legal Onslaught in 2014).

Together, these and other developments in the field of Aboriginal consultation raise questions about whether, a decade after Haida, we are closer to resolving conflicts over Aboriginal rights and resource development.  There are many Aboriginal consultation success stories across the county, but these may be overshadowed by recent developments which could create more and not less conflict.

By Lorraine Land

For a copy of the full paper, Creating the Perfect Storm for Conflicts Over Aboriginal Rights: Critical New Developments in the Law of Aboriginal Consultation, click here.