Supreme Court Clarifies Consultation Responsibilities

Supreme Court Clarifies Consultation Responsibilities

August 21, 2014

The Supreme Court of Canada recently released two significant decisions that will affect development in Northwestern Ontario – Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v. Ontario, 2014 SCC 48.

Tsilhqot’in is the first case to declare the existence of Aboriginal title over approximately 1700 square kilometres of remote lands in British Columbia, upon principles developed in earlier cases. This case was framed to seek a declaration of title as opposed to a delineation of consultation and protection obligations regarding development of the land. The case began with a 339 day trial, involving elder, expert and historical evidence as the use of the claimed area. The trial court held that sufficient evidence of regular nomadic occupation of the claimed area was sufficient to establish title, while the Court of Appeal disagreed, holding that only particular sites, subject of intensive occupation within defined boundaries could make out a title claim. The Supreme Court of Canada upheld the trial level requirements of demonstrating title – exclusive and regular nomadic use of the area claimed at the time of sovereignty.

The declaration of Aboriginal title in Tsilhqot’in provides the right to continued exclusive occupancy and use of the title lands for all purposes compatible with the existing and future collective interests of the community members. Absent consent of the Tsilhqot’in community, the government permitted development of the lands by third parties will be subject to the requirements of s. 35 of the Constitution Act, 1982 and the test for infringement of s. 35 rights as set out by the Supreme Court of Canada in R. v. Sparrow. That test requires the responsible level of government to demonstrate a project demonstrates a compelling legislative objective, that it has undertaken satisfactory consultation to determine minimal impairment of the affected right and that its action is consistent with any fiduciary obligation of the Crown regarding the Aboriginal lands. Another earlier Supreme Court of Canada case, Delgamuukw v. British Columbia, indicated that agriculture, forestry, mining, hydro development and conservation endeavours, amongst other initiatives, may justify infringement of Aboriginal title in appropriate circumstances.

In reaching its decision to declare Aboriginal title over the claimed lands and to render the provincial Forest Act inapplicable to them, the Court notably clarified that provincial governments can regulate and interfere with Aboriginal title lands and use rights, subject to the Sparrow test. In doing so, the Court overturned its earlier decision, R. v. Morris, which had held that provincial laws could not derogate from s. 35 rights for they were within the exclusive purview of the federal government.

It was not surprising then when the Court released its decision in Grassy Narrows v. Ontario, also known as the Keewatin case, in which it held that the province could ‘take up’ Treaty lands under the provisions of Treaties and that the province was responsible for consultation for that infringement or potential accommodation of claimed yet unproven Treaty land use rights.

In this case, the applicants claimed the federal government was required to consult with Grassy Narrows First Nation regarding the ‘taking up’ of Treaty lands for forestry harvesting and further that provincial laws could not infringe treaty rights in any circumstances. The Court, following its determination regarding R. v. Morris in Tsilhqot’in, held that both provincial and federal governments can infringe Treaty land use rights within their respective spheres of constitutional jurisdiction, subject to the Sparrow test, and that only the government with jurisdiction over the approval of a project has the obligation to consult with the affected Aboriginal community regarding infringement of proven Treaty rights or the potential for due accommodation of claimed but disputed Treaty rights.

WHAT DO THESE CASES MEAN FOR DEVELOPMENT IN NORTHWESTERN ONTARIO?

While Ontario is blanketed by historical Treaties, there are several existing claims to Aboriginal title and further Treaty land use rights due to disputed treaty processes and interpretations. Upon proof of such a claim and absent consent of the affected Aboriginal community to the proposed infringement, the provincial government will have to consult with the community and meet the Sparrow test outlined above before approving a project affecting the claimed lands. The provincial government will also be responsible for consultation and the lesser protection through accommodation of claimed Aboriginal and Treaty rights before approving a project upon any of the claimed lands. The duty to consult and to accommodate claimed rights continues until proof of Aboriginal title or use rights is determined by an interpretation of an existing treaty, a modern negotiated agreement or a court of law. The federal government will only be responsible to meet the Sparrow test for infringement or to engage in consultation and accommodation of claimed s. 35 rights when reserve or other federal lands or federal project approvals are engaged.

In both cases, the Supreme Court reaffirmed that whether federal or provincial approval is required for a project, that the obligation to balance s. 35 Aboriginal rights with those of proponents lies with the Crown in its respective constitutional capacities. The appropriate arm of the Crown must do so in view of the Aboriginal title or land use right established or claimed and it cannot delegate its protective obligations as set out in Sparrow or by case law on accommodation of claimed rights to third parties.

It will now be for the provincial governments to ensure that they understand the various forms of Aboriginal rights and corresponding protective obligations for they have full jurisdiction over provincial Crown lands and the bulk of project approvals affecting Aboriginal title and land use rights across the country. Their role will be especially important when a proponent and Aboriginal community cannot reach reconciliation of their respective interests, leaving the provincial government as the sole responsible body for reaching a decision in compliance with the law as described above.