The high cost to Canadians where the Crown resists Aboriginal consultation

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There is a high cost to Canadians when, instead of resolving conflicts over Aboriginal land rights, Canada drags its heels or chooses to use court battles.

Last week, the Law Times featured an article on their website entitled, “Feds pouring big money into aboriginal litigation”. This title leaves little to the imagination in terms of the article’s content. The gist of the piece is that Aboriginal Affairs and Northern Development Canada (AANDC), the main federal department responsible for meeting the Government of Canada’s obligations and commitments to First Nations, is (once again) at the top of the list of federal departmental spending on legal fees.

According to the newly-released public accounts figures for 2012-13, AANDC’s legal tab reached a total of $106 million—an amount that far exceeds the department next in line (the Canada Revenue Agency) with a legal tab of $66 million. As the Law Times article states, AANDC also took the prize for biggest spender last year, shelling out $110 million in legal services.

Why is AANDC spending such a significant amount of money litigating Aboriginal claims? The article suggests that a key cost driver is outstanding land claims. We would agree, but we would also suggest that another key part of the explanation for this high costs is the Crown’s failure to properly and/or meaningfully fulfill its duty to consult obligations owed to First Nations. Failing to get on with proper Aboriginal consultation and accommodation comes at a high cost when case after case ends up in court.

In 2004, the Supreme Court of Canada released its decision in Haida Nation v British Columbia (Minister of Forests)[1]—the leading case setting out the foundational principles of the “duty to consult and accommodate”. The duty to consult is a legal responsibility placed upon the Crown that must be satisfied in order for any Crown action and/or decision having the potential to impact Aboriginal rights and claims to be legally valid. (For a general overview on the duty to consult, you can read our “primer” that we attached to a previous blog post).  The ‘duty to consult’ is a sort of procedural framework that affords Aboriginal rights and interests protection from unilateral Crown action, even before those rights or interests are proven in court.

One of the “goals” behind this legal duty is to encourage negotiation as the preferred means by which issues between government and First Nations are addressed and (ideally) resolved—negotiation is much more likely to contribute to an improved relationship between the parties, and is a significantly less costly way to reach resolutions in comparison to litigation. Indeed, the Courts have made it clear that the key goal of Aboriginal consultation should be reconciliation.

However, even with the reality of that legal duty to negotiate, the public accounts figures show that many issues between government and First Nations are still to a large extent being addressed in the courtroom. In fact, since the release of the Haida decision, there has been a substantial increase in AANDC spending on legal services, from $7.1 million in 2002-2003 (the year prior to the release of Haida), to the recently-reported $106 million in 2012-2013.

It is clear that , although Canada’s highest Court has been clear about the fact that the duty to consult is a legal obligation of the Crown, First Nations often find themselves resorting to the much more costly mechanism—litigation—as a means of seeking protection for their asserted rights and interests. Simon v Canada (Attorney General),[2] Long Plain First Nation v Canada,[3] Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General)[4] and Sambaa K’e Dene Band v. Duncan[5] are just a few cases within the last year in which the adequacy of consultation has been litigated (and where the federal government was found to have failed to comply with its consultation obligations to First Nations).

To put it bluntly, in far too many cases, the Crown is failing to get on with the clearly required legal obligation of Aboriginal consultation, and is playing an expensive game of ‘chicken’ to see if First Nations will respond by litigating. And that game of ‘chicken’ comes at a heavy price tag for the federal government and thus for Canadian taxpayers. It is also creates unjust disparities between Aboriginal communities as few Aboriginal communities have the financial resources to use litigation to enforce their rights when the Crown refuses to properly consult and accommodate.

The recent public accounts figures of AANDC are a reminder of the need to return to the principles set out in Haida, namely that negotiation and resolved agreements are the preferred, more effective (and less costly) means of addressing issues arising between government and First Nations.

By Kaitlin Ritchie