June 6, 2022

By Brian Babcock

1. What is the ‘honour of the Crown’? It is a constitutional duty to First Nations (or other Indigenous peoples) which springs from the ongoing process of reconciliation with Indigenous people, a process which is a moral, political, and legal obligation of the Crown. It is an obligation at the highest level and thus must be taken seriously. The Crown must act honorably and with integrity avoiding even the appearance of sharp dealing.
2. What does the honour of the Crown require? That is not fully settled, but one thing that it clearly requires is consultation with First Nations before resource development occurs, including the granting of an exploration permit.
3. When does the duty to consult arise? When the Crown has real or constructive knowledge of asserted or known Aboriginal or treaty rights which may be adversely affected by resource development. To be meaningful, consultation must occur before any activity begins and not afterwards.
4. What degree of consultation is required? This may be the most contentious issue. The degree of consultation falls on a spectrum and is proportionate to the importance of the Aboriginal or treaty rights and the seriousness of the potential adverse effect. The controlling question in all situations is what is required to affect reconciliation.
5. Where on the spectrum does early exploration in a remote uninhabited area fall? If the activities are temporary and any activities can be cleaned up, and the use of the lands is not significant to the community, that is at the “low end” of the spectrum.
6. What is the goal of consultation? The goal is to substantially address the community’s concerns. However, consultation is a process and not a right to a particular outcome. Often the result of consultation will be a duty to accommodate to address the community’s concerns.
7. Who pays for consultation? This is an important and difficult issue. First Nations typically do not have funding at hand to participate in the process. Therefore, frequently part of the the honour of the Crown requires that the Crown provide reasonable funding. The courts however have held that it is important that parties avoid “funding brinkmanship”. Courts will review the issue of funding on a standard of reasonableness if there is a dispute.
8. Does a mining company wishing to undertake exploration on traditional lands owe this duty to First Nations? No, the duty is solely that of the Crown, but in the mining context, the company is often involved with the Crown in satisfying the duty.
9. What is the remedy for a failure to consult? It may result in the permit being quashed, even where the duty to consult is at the “low end” of the spectrum. That did not happen in the Attiwapiskat case, but in an earlier case involving Eabamatoong First Nation the court did quash the permit. In that case, the exploration activities would have involved a permanent impact affecting numerous families who used the land extensively.
10. When are lawyers needed? Because of the importance of getting the duty to consult right at the beginning of the process, participants should have experienced legal representation from the beginning.

Weilers LLP’s proud tradition in mining law goes back to our very beginning. Before Biff and Bernie Weiler combined their practices in Fort William 75 years ago, they got their starts in Red Lake and Hardrock mining camp (Geraldton) respectively. We now combine that tradition with a progressive approach that reflects our extensive work with both resource industries and First Nations.

Whether you are a mining company or an Indigenous community, we would like to help you get reconciliation right.