THE DUTY TO CONSULT AND

ACCOMMODATE ABORIGINAL PEOPLES

I. INTRODUCTION

The duty to consult and accommodate Aboriginal peoples has

been recognized by the Supreme Court as a constitutional
obligation since at least 1990. At that time, in R v
Sparrow, [1990] 1 SCR 1075, 70 DLR (4th) 385 , the Court
identified consultation with and accommodation of affected
Aboriginal peoples as a requirement if government wished to
justify an infringement of Aboriginal rights under s 35 of
the Constitution Act, 1982. In 2004, the decision in Haida Nation
v British Columbia (Minister of Forests), 2004 SCC 73 extended
the obligation to claimed or asserted Aboriginal rights as well as
established ones. In 2005, the decision in Mikisew Cree First
Nation v Canada (Minister of Canadian Heritage), 2005 SCC
69 confirmed that the duty also applied to rights under historic
Crown–Aboriginal treaties, and in 2010, the decision in Beckman
v Little Salmon/Carmacks First Nation, 2010 SCC 53 confirmed
that the duty also applied in relation to modern Crown–Aboriginal
treaties. This Crown obligation impacts the daily business of
government, particularly in the regulation of lands, waters,
environment, and resource development. These impacts alone
make the duty to consult and accommodate an important part of
administrative law. However, the duty is also important as an
expression of the honour of the Crown, an unwritten
constitutional principle that, like judicial independence and
parliamentary supremacy, is a component of the rule of law in
Canada. Further, the duty borrows from and further develops
aspects of the duty of fairness, making it an important part of at
least the procedural aspects of Canadian public law.
While the procedural nature of the duty is often emphasized in
the cases, the duty also has substantive elements. This is evident
in, at least, the language of accommodation. Similarly, and like
the duty of fairness, the duty may involve a requirement for
reasons, and, as described in both Chapters 4 and 11 of this text,
it is difficult to draw a line between review of reasons on
procedural versus substantive grounds.
This chapter on the duty to consult and accommodate thus
segues from procedural review to substantive review, anticipating
material covered in Part III of the text. This positioning within
this text and fluidity within the duty itself speaks to the unique
nature of this duty in Canadian public law, as well as the porous
nature of the line between procedure and substance more
generally.
The chapter starts with an examination of the source of the
duty to consult and accommodate. It is followed by sections on
the threshold for the duty, the scope, and the content of the duty,
and the standard of review that applies to judicial review of
alleged breaches of the duty by government decision-makers. The
chapter concludes with a brief consideration of who may assert a
breach of the duty to consult and accommodate and who is
bound by this obligation. Excerpts from Haida Nation, the
seminal decision on the duty to consult and accommodate, are
distributed throughout these sections, with additional excerpts
from Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC
43 [Carrier Sekani Tribal Council], and shorter excerpts and
discussion of cases that have refined elements of the duty
since Haida Nation.
The chapter uses both “Aboriginal” and “Indigenous” as a
collective name for the peoples upon whose territories Canada
was established. “Indigenous” is preferred as a “pan-Indigenous”
name by many Indigenous peoples, given its grounding in
international law. We use this name to refer to peoples and their
systems of law and government generally, as well as to identify
their rights and state obligations based on international law. We
also continue to use “Aboriginal” for two reasons. First, it
remains the language of s 35 of the Constitution Act, 1982.
Second, because it is the language of the Constitution, using it
signals that we are talking about rights and obligations grounded
in the Canadian Constitution. Finally, where context permits, we
use the names of specific peoples (for example, Dene or Gitxsan)
or other more specific group names as appropriate to the context
(for example, First Nations).

II. THE SOURCE

Haida Nation arose from long-standing title assertions by the
Haida Nation, which claimed that British Columbia was required
to consult with them about the use of their Aboriginal title lands.
Specifically, they objected to logging operations on their lands.
The Supreme Court found in favour of the Haida Nation and, in
the process, expanded the scope of procedural obligations owed
to Aboriginal peoples in relation to their constitutional rights
beyond those previously recognized in Sparrow. The Court also
made the duty to consult and accommodate a key remedy in the
pursuit of reconciliation of the pre-existence of Aboriginal
societies with the sovereignty of the Crown, the overarching
purpose ascribed by the Court to Aboriginal peoples’ rights under
s 35 of the Constitution Act, 1982. The role of the duty is to
preserve their interests in lands and resources pending a more
final settlement of claimed Aboriginal rights through treaty
negotiation, litigation, or other processes. The duty also serves to
ensure that resource development proceeds in the public interest,
pending settlement of outstanding Aboriginal land and other
rights claims. In its highest aspirations, the duty aims to support
and improve relationships between Indigenous peoples and the
Crown based on principles of compromise, cooperation, and
mutual interest.
Sparrow prescribed consultation and accommodation with
Aboriginal peoples as a necessary step for the Crown to justify an
infringement of an Aboriginal right that was proven or recognized
at law, applicable also to Aboriginal treaty rights: R v
Badger, [1996] 1 SCR 771, 133 DLR (4th) 324. According to the
Supreme Court in Haida Nation, the honour of the Crown gives
rise to a duty to consult and accommodate Aboriginal peoples
before their rights have been established formally by Canadian
law. The honour of the Crown was later confirmed as an
unwritten constitutional principle in Beckman v Little
Salmon/Carmacks First Nation at para 42. In treaty contexts, the
honour of the Crown has long been recognized as requiring an
interpretation of these agreements that avoided any appearance
of “sharp dealing” by the Crown (R v Badger; R v Marshall, [1999]
3 SCR 456, 177 DLR (4th) 513). It was also relied on
in Sparrow to identify the standard of conduct that government
had to meet in order to justify an infringement of Aboriginal
rights. However, before Haida Nation, the principle had not been
relied on as a source of procedural obligations independently of
fiduciary principles that had guided the law on the Crown’s
conduct in its relationships with Indigenous peoples. As you read
the excerpt from Haida Nation, note how McLachlin CJ describes
the honour of the Crown as an umbrella concept that
encompasses fiduciary obligations, the duty to consult, and
potentially other obligations.

Haida Nation v British Columbia (Minister of Forests)

2004 SCC 73
McLACHLIN CJ (for the Court):
I. Introduction
[1] To the west of the mainland of British Columbia lie the
Queen Charlotte Islands, the traditional homeland of the Haida
people. Haida Gwaii, as the inhabitants call it, consists of two
large islands and a number of smaller islands. For more than
100 years, the Haida people have claimed title to all the lands of
the Haida Gwaii and the waters surrounding it. That title is still
in the claims process and has not yet been legally recognized.
[2] The islands of Haida Gwaii are heavily forested. Spruce,
hemlock and cedar abound. The most important of these is the
cedar which, since time immemorial, has played a central role in
the economy and culture of the Haida people. It is from cedar
that they made their ocean-going canoes, their clothing, their
utensils and the totem poles that guarded their lodges. The cedar
forest remains central to their life and their conception of
themselves.
[3] The forests of Haida Gwaii have been logged since before the
First World War. Portions of the island have been logged off.
Other portions bear second-growth forest. In some areas, old-
growth forests can still be found.
[4] The Province of British Columbia continues to issue
licences to cut trees on Haida Gwaii to forestry companies. The
modern name for these licenses are Tree Farm Licences, or
T.F.L.’s. Such a licence is at the heart of this litigation. A large
forestry firm, MacMillan Bloedel Limited acquired T.F.L. 39 in
1961, permitting it to harvest trees in an area designated as
Block 6. In 1981, 1995 and 2000, the Minister replaced T.F.L. 39
pursuant to procedures set out in the Forest Act, R.S.B.C. 1996,
c. 157. In 1999, the Minister approved a transfer of T.F.L. 39 to
Weyerhaeuser Company Limited (“Weyerhaeuser”). The Haida
people challenged these replacements and the transfer, which
were made without their consent and, since at least 1994, over
their objections. Nevertheless, T.F.L. 39 continued.
 [5] In January of 2000, the Haida people launched a lawsuit
objecting to the three replacement decisions and the transfer of
T.F.L. 39 to Weyerhaeuser and asking that they be set aside.
They argued legal encumbrance, equitable encumbrance and
breach of fiduciary duty, all grounded in their assertion of
Aboriginal title.

[6] This brings us to the issue before this Court. The

government holds legal title to the land. Exercising that legal title,
it has granted Weyerhaeuser the right to harvest the forests in
Block 6 of the land. But the Haida people also claim title to the
land—title which they are in the process of trying to prove—and
object to the harvesting of the forests on Block 6 as proposed in
T.F.L. 39. In this situation, what duty if any does the government
owe the Haida people? More concretely, is the government
required to consult with them about decisions to harvest the
forests and to accommodate their concerns about what if any
forest in Block 6 should be harvested before they have proven
their title to land and their Aboriginal rights?
[7] The stakes are huge. The Haida argue that absent
consultation and accommodation, they will win their title but find
themselves deprived of forests that are vital to their economy and
their culture. Forests take generations to mature, they point out,
and old-growth forests can never be replaced. The Haida’s claim
to title to Haida Gwaii is strong, as found by the chambers judge.
But it is also complex and will take many years to prove. In the
meantime, the Haida argue, their heritage will be irretrievably
despoiled.
[8] The government, in turn, argues that it has the right and
responsibility to manage the forest resource for the good of all
British Columbians, and that until the Haida people formally
prove their claim, they have no legal right to be consulted or have
their needs and interests accommodated.
[9] The chambers judge found that the government has a
moral, but not a legal, duty to negotiate with the Haida people:
[2001] 2 C.N.L.R. 83, 2000 BCSC 1280. The British Columbia
Court of Appeal reversed this decision, holding that both the
government and Weyerhaeuser have a duty to consult with and
accommodate the Haida people with respect to harvesting timber
from Block 6: (2002), 99 B.C.L.R. (3d) 209, 2002 BCCA 147, with
supplementary reasons (2002), 5 B.C.L.R. (4th) 33, 2002 BCCA
462.
 [10] I conclude that the government has a legal duty to consult
with the Haida people about the harvest of timber from Block 6,
including decisions to transfer or replace Tree Farm Licences.
Good faith consultation may in turn lead to an obligation to
accommodate Haida concerns in the harvesting of timber,
although what accommodation if any may be required cannot at
this time be ascertained. Consultation must be meaningful. There
is no duty to reach agreement. The duty to consult and, if
appropriate, accommodate cannot be discharged by delegation to
Weyerhaeuser. Nor does Weyerhaeuser owe any independent
duty to consult with or accommodate the Haida people’s
concerns, although the possibility remains that it could become
liable for assumed obligations. It follows that I would dismiss the
Crown’s appeal and allow the appeal of Weyerhaeuser.
[11] This case is the first of its kind to reach this Court. Our
task is the modest one of establishing a general framework for
the duty to consult and accommodate, where indicated, before
Aboriginal title or rights claims have been decided. As this
framework is applied, courts, in the age-old tradition of the
common law, will be called on to fill in the details of the duty to
consult and accommodate.
II. Analysis
•••
[Chief Justice McLachlin discussed whether the proper remedy in
this situation would be an interlocutory injunction and held that
while the Haida could apply for an injunction, they were not
limited to this remedy. The discussion of the suitability of
interlocutory injunctions in the context of this and other
Aboriginal law disputes is omitted.]

B. The Source of a Duty to Consult and Accommodate

[16] The government’s duty to consult with Aboriginal peoples
and accommodate their interests is grounded in the honour of
the Crown. The honour of the Crown is always at stake in its
dealings with Aboriginal peoples: see for example R. v. Badger,
[1996] 1 SCR 771, at para. 41; R. v. Marshall, [1999] 3 SCR 456.
It is not a mere incantation, but rather a core precept that finds
its application in concrete practices.
[17] The historical roots of the principle of the honour of the
Crown suggest that it must be understood generously in order to
reflect the underlying realities from which it stems. In all its
dealings with Aboriginal peoples, from the assertion of
sovereignty to the resolution of claims and the implementation of
treaties, the Crown must act honourably. Nothing less is required
if we are to achieve “the reconciliation of the pre-existence of
aboriginal societies with the sovereignty of the
Crown”: Delgamuukw [v British Columbia, [1997] 3 SCR 1010], at
para. 186, quoting Van der Peet [R v, [1996] 2 SCR 507], at para.
31.
[18] The honour of the Crown gives rise to different duties in
different circumstances. Where the Crown has assumed
discretionary control over specific Aboriginal interests, the
honour of the Crown gives rise to a fiduciary duty: Wewaykum
Indian Band v. Canada, [2002] 4 SCR 245, 2002 SCC 79, at para.
79. … Here, Aboriginal rights and title have been asserted but
have not been defined or proven. The Aboriginal interest in
question is insufficiently specific for the honour of the Crown to
mandate that the Crown act in the Aboriginal group’s best
interest, as a fiduciary, in exercising discretionary control over
the subject of the right or title.
[19] The honour of the Crown also infuses the processes of
treaty making and treaty interpretation. In making and applying
treaties, the Crown must act with honour and integrity, avoiding
even the appearance of “sharp dealing” (Badger, at para. 41). …
[20] Where treaties remain to be concluded, the honour of the
Crown requires negotiations leading to a just settlement of
Aboriginal claims: R. v. Sparrow, [1990] 1 SCR 1075, at pp. 1105-
6. Treaties serve to reconcile pre-existing Aboriginal sovereignty
with assumed Crown sovereignty, and to define Aboriginal rights
guaranteed by s. 35 of the Constitution Act, 1982. Section 35
represents a promise of rights recognition, and “[i]t is always
assumed that the Crown intends to fulfil its promises”
(Badger, supra, at para. 41). This promise is realized and
sovereignty claims reconciled through the process of honourable
negotiation. It is a corollary of s. 35 that the Crown act
honourably in defining the rights it guarantees and in reconciling
them with other rights and interests. This, in turn, implies a duty
to consult and, if appropriate, accommodate.
•••
[A brief review of treatments and affirmations of a duty to consult
in previous cases dealing with Aboriginal rights and title is
omitted.]
[25] Put simply, Canada’s Aboriginal peoples were here when
Europeans came, and were never conquered. Many bands
reconciled their claims with the sovereignty of the Crown through
negotiated treaties. Others, notably in British Columbia, have yet
to do so. The potential rights embedded in these claims are
protected by s. 35 of the Constitution Act, 1982. The honour of
the Crown requires that these rights be determined, recognized
and respected. This, in turn, requires the Crown, acting
honourably, to participate in processes of negotiation. While this
process continues, the honour of the Crown may require it to
consult and, where indicated, accommodate Aboriginal interests.

NOTES AND QUESTIONS

1. Since Haida Nation, the honour of the Crown has also been
recognized as the source for consultation obligations in relation
to government decisions to take up treaty lands for settlement
and development under specific provisions of historical treaties
with Indigenous peoples (Mikisew Cree First Nation). It has also
been relied on to fill gaps where a modern treaty did not address
potential consultation obligations (Little Salmon/Carmacks First
Nation).
2. The honour of the Crown has a more specific scope of
application than the principles of fundamental justice because
the duty to consult and accommodate is owed only to Aboriginal
peoples who can assert s 35 rights. However, it also shares
characteristics with the notion of fundamental justice that
underlies procedural and substantive rights under s 7 (see
Chapter 3). As sources of governmental procedural obligations,
both constitutional principles protect the rule of law. Also, both
principles embed a concern for balance between state and
individual interests: see, regarding s 7, Rodriguez v British
Columbia (Attorney General), [1993] 3 SCR 519, 107 DLR (4th)
342, and regarding the honour of the Crown, Haida Nation at
para 45, excerpted below. Also, fundamental justice includes, at
minimum, the requirements of the common law duty of fairness
(Singh v Minister of Employment and Immigration, [1985] 1 SCR
177, 1985 CanLII 65. While the relationship between procedural
requirements under the honour of the Crown relative to those
under a duty of fairness is not as clearly articulated, the case law
to date suggests a similar relationship whereby the content of the
duty to consult includes at least the content of a duty of fairness
in the same circumstances (Little Salmon/Carmacks First Nation).
In Little Salmon/Carmacks First Nation, the Court addressed the
argument that the constitutional duty to consult should have a
content distinct from administrative law, given its source in the
honour of the Crown and its purpose in contributing to the
constitutional process of reconciliation. The Supreme Court
dismissed this argument, saying that “[a]dministrative law is
flexible enough to give full weight to the constitutional interests
of the First Nation” (at para 47).
3. The reliance on the honour of the Crown as the source of the
duty to consult and accommodate is open to criticism. One
criticism is that it resurrects a principle that may be
characterized as a relic of English legal history. Mariana Valverde
notes that “appealing to self-imposed noblesse oblige duties
arising from the inherently honourable nature of the mystical
Crown … legitimizes a form of sovereignty that one would think
was long discredited” (M Valverde, “The Crown in a Multicultural
Age: The Changing Epistemology of (Post)colonial Sovereignty”
(2012) 21:1 Soc & Leg Stud 3 at 18). Many other critiques and
evaluations of the duty to consult have also been concerned with
the assumptions of sovereignty embedded in it, and whether the
duty is capable of effecting constitutional change: Gordon
Christie, “Developing Case Law: The Future of Consultation and
Accommodation” (2006) 39 UBC L Rev 139; Mark Walters, “The
Morality of Aboriginal Law” (2006) 31 Queen’s L J 470; James S
Anaya & Sergio Puig, “Mitigating State Sovereignty: The Duty to
Consult with Indigenous Peoples” (2017) 67 UTLJ 435; Richard
Stacey, “Honour in Sovereignty: Can Crown Consultation with
Indigenous People Erase Canada’s Sovereignty Deficit?” (2018) 68
UTLJ 405; and Robert Hamilton & Joshua Nichols, “The Tin Ear
of the Court: Ktunaxa Nation and the Foundation of the Duty to
Consult” (2019) Alb L Rev 729.
Justice Slatter of the Alberta Court of Appeal offered another
criticism in R v Lefthand, 2007 ABCA 206:
[75] … The term “honour,” especially when used in the
phrase “honour of the Crown” has an absolute, moralistic
and inflexible connotation, which does not accommodate the
type of balancing and evolution of ideas, rights and concepts
that is required in constitutional jurisprudence. … The
phrase “honour of the Crown” is even less precise than “the
public interest,” the latter phrase having been found
in Sparrow at pg. 1113, to be “so vague as to provide no
meaningful guidance and so broad as to be unworkable as a
 test for the justification of a limitation on constitutional
rights.”

In your view, how different is the principle of the honour of the

Crown from other principles in administrative law, such as
natural justice or fundamental justice? How different is it from
the principles of fundamental justice as a source of procedural
obligations under s 7 of the Charter?

III. THE THRESHOLD

The threshold question asks whether a duty to consult and
accommodate exists in a given context. It exists where the Crown
has knowledge of an existing or potential Aboriginal or treaty
right and contemplates conduct that potentially affects that right
adversely. Crown knowledge can be constructive, and the
potential Aboriginal or treaty right is assessed under a credible
claim standard.
Similar to the common law duty of fairness, the threshold is
not difficult to cross. As a result, consultation obligations apply
broadly across governmental decision-making, particularly in
lands and resources sectors where decisions regularly impact
Indigenous peoples’ economies and traditional uses of lands,
waters, forests, wildlife, and other resources.
Below are excerpts from Haida Nation and Carrier Sekani
Tribal Council, which refined and clarified issues at the threshold
stage of the analysis. As you read the decisions, consider the
nature of the government conduct that triggered the duty in each
case and how it impacted Indigenous peoples’ interests.
Haida Nation v British Columbia (Minister of Forests)
2004 SCC 73
McLACHLIN CJ (for the Court):
[The facts are reproduced in the excerpt above.]
C. When the Duty to Consult and Accommodate Arises
[26] Honourable negotiation implies a duty to consult with
Aboriginal claimants and conclude an honourable agreement
reflecting the claimants’ inherent rights. But proving rights may
take time, sometimes a very long time. In the meantime, how are
the interests under discussion to be treated? Underlying this
question is the need to reconcile prior Aboriginal occupation of
the land with the reality of Crown sovereignty. Is the Crown,
under the aegis of its asserted sovereignty, entitled to use the
resources at issue as it chooses, pending proof and resolution of
the Aboriginal claim? Or must it adjust its conduct to reflect the
as yet unresolved rights claimed by the Aboriginal claimants?
[27] The answer, once again, lies in the honour of the Crown.
The Crown, acting honourably, cannot cavalierly run roughshod
over Aboriginal interests where claims affecting these interests
are being seriously pursued in the process of treaty negotiation
and proof. It must respect these potential, but yet unproven,
interests. The Crown is not rendered impotent. It may continue to
manage the resource in question pending claims resolution. But,
depending on the circumstances, discussed more fully below, the
honour of the Crown may require it to consult with and
reasonably accommodate Aboriginal interests pending resolution
of the claim. To unilaterally exploit a claimed resource during the
process of proving and resolving the Aboriginal claim to that
resource, may be to deprive the Aboriginal claimants of some or
all of the benefit of the resource. That is not honourable.
[28] The government argues that it is under no duty to consult
and accommodate prior to final determination of the scope and
content of the right. Prior to proof of the right, it is argued, there
exists only a broad, common law “duty of fairness,” based on the
general rule that an administrative decision that affects the
“rights, privileges or interests of an individual” triggers
application of the duty of fairness: Cardinal v. Director of Kent
Institution, [1985] 2 SCR 643, at p. 653; Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 SCR 817, at
para. 20. The government asserts that, beyond general
administrative law obligations, a duty to consult and
accommodate arises only where the government has taken on the
obligation of protecting a specific Aboriginal interest or is seeking
to limit an established Aboriginal interest. In the result, the
government submits that there is no legal duty to consult and
accommodate Haida interests at this stage, although it concedes
there may be “sound practical and policy reasons” to do so.
•••
[30] As for policy, the government points to practical difficulties
in the enforcement of a duty to consult or accommodate
unproven claims. If the duty to consult varies with the
circumstances from a “mere” duty to notify and listen at one end
of the spectrum to a requirement of Aboriginal consent at the
other end, how, the government asks, are the parties to agree
which level is appropriate in the face of contested claims and
rights? And if they cannot agree, how are courts or tribunals to
determine this? The government also suggests that it is
impractical and unfair to require consultation before final claims
determination because this amounts to giving a remedy before
issues of infringement and justification are decided.
[31] The government’s arguments do not withstand scrutiny.
Neither the authorities nor practical considerations support the
view that a duty to consult and, if appropriate, accommodate
arises only upon final determination of the scope and content of
the right.
[32] The jurisprudence of this Court supports the view that the
duty to consult and accommodate is part of a process of fair
dealing and reconciliation that begins with the assertion of
sovereignty and continues beyond formal claims resolution.
Reconciliation is not a final legal remedy in the usual sense.
Rather, it is a process flowing from rights guaranteed by s. 35(1)
of the Constitution Act, 1982. This process of reconciliation flows
from the Crown’s duty of honourable dealing toward Aboriginal
peoples, which arises in turn from the Crown’s assertion of
sovereignty over an Aboriginal people and de facto control of land
and resources that were formerly in the control of that people. As
stated in Mitchell v. M.N.R., [2001] 1 SCR 911, 2001 SCC 33, at
para. 9, “[w]ith this assertion [sovereignty] arose an obligation to
treat aboriginal peoples fairly and honourably, and to protect
them from exploitation” (emphasis added).
[33] To limit reconciliation to the post-proof sphere risks
treating reconciliation as a distant legalistic goal, devoid of the
“meaningful content” mandated by the “solemn commitment”
made by the Crown in recognizing and affirming Aboriginal rights
and title: Sparrow, supra, at p. 1108. It also risks unfortunate
consequences. When the distant goal of proof is finally reached,
the Aboriginal peoples may find their land and resources changed
and denuded. This is not reconciliation. Nor is it honourable.
•••
[35] But, when precisely does a duty to consult arise? The
foundation of the duty in the Crown’s honour and the goal of
reconciliation suggest that the 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: see Halfway River First Nation v. British
Columbia (Ministry of Forests), [1997] 4 CNLR 45 (BCSC), at p.
71, per Dorgan J.
[36] This leaves the practical argument. It is said that before
claims are resolved, the Crown cannot know that the rights exist,
and hence can have no duty to consult or accommodate. This
difficulty should not be denied or minimized. As I stated
(dissenting) in Marshall, supra, at para. 112, one cannot
“meaningfully discuss accommodation or justification of a right
unless one has some idea of the core of that right and its modern
scope.” However, it will frequently be possible to reach an idea of
the asserted rights and of their strength sufficient to trigger an
obligation to consult and accommodate, short of final judicial
determination or settlement. To facilitate this determination,
claimants should outline their claims with clarity, focussing on
the scope and nature of the Aboriginal rights they assert and on
the alleged infringements. This is what happened here, where the
chambers judge made a preliminary evidence-based assessment
of the strength of the Haida claims to the lands and resources of
Haida Gwaii, particularly Block 6.
[37] There is a distinction between knowledge sufficient to
trigger a duty to consult and, if appropriate, accommodate, and
the content or scope of the duty in a particular case. Knowledge
of a credible but unproven claim suffices to trigger a duty to
consult and accommodate. The content of the duty, however,
varies with the circumstances, as discussed more fully below. A
dubious or peripheral claim may attract a mere duty of notice,
while a stronger claim may attract more stringent duties. The law
is capable of differentiating between tenuous claims, claims
possessing a strong prima facie case, and established claims.
Parties can assess these matters, and if they cannot agree,
tribunals and courts can assist. Difficulties associated with the
absence of proof and definition of claims are addressed by
assigning appropriate content to the duty, not by denying the
existence of a duty.
[38] I conclude that consultation and accommodation before
final claims resolution, while challenging, is not impossible, and
indeed is an essential corollary to the honourable process of
reconciliation that s. 35 demands. It preserves the Aboriginal
interest pending claims resolution and fosters a relationship
between the parties that makes possible negotiations, the
preferred process for achieving ultimate reconciliation: see S.
Lawrence and P. Macklem, “From Consultation to Reconciliation:
Aboriginal Rights and the Crown’s Duty to Consult” (2000),
79 Can. Bar Rev. 252, at p. 262. Precisely what is required of the
government may vary with the strength of the claim and the
circumstances. But at a minimum, it must be consistent with the
honour of the Crown.
After the decision in Haida Nation, further issues in relation to
the threshold for the duty emerged. One was whether the duty
applied to both historical and continuing impacts of development
on Aboriginal rights. This issue was addressed in Carrier Sekani
Tribal Council, excerpted below, in which the Court held that the
duty was triggered only by new impacts on Aboriginal rights.

Rio Tinto Alcan Inc v Carrier Sekani Tribal Council

2010 SCC 43
[This case concerned the sale of electricity from a power plant
that supplied an aluminum smelter on the Nechako River in
British Columbia. The power plant was built in the 1960s,
following the construction of a dam that seriously altered water
levels and fishing in the region. The Haisla Nation was consulted at the time, but the Carrier
Sekani Tribal Council (CSTC) First Nations were not. CSTC, which has been pursuing a
treaty through the BC treaty process since 1993, claimed the Nechako Valley as the CSTC
First Nations ancestral homeland and the right to fish in the Nechako River.
HydroBC entered into an Energy Purchase Agreement (EPA) with the aluminum smelter
(owned by Rio Tinto Alcan) for any excess electricity produced at the power plant. The EPA
was renegotiated in 2007. The renegotiated contract between HydroBC and Rio Tinto Alcan
required the approval of the BC Utilities Commission. The Commission’s mandate was to
ensure that sales of electricity were in the public interest. It could disallow a contract where it
determined that the contract was not in the public interest, having regard to the quantity of
energy to be supplied, the availability of supplies, the price and availability of any other form
of energy, the price of the energy supplied to a public utility company, and “any other factor
that the commission considers relevant to the public interest” (Utilities Commission Act,
RSBC 1996, c 473, s 71(2)(a)-(e)). The Commission also had the authority to hold public
hearings to assist in making its decisions.
Among other issues, the CSTC asked the Commission to include the adequacy of the
consultation in relation to the 2007 EPA within its deliberations. In response, the
Commission held a scoping hearing. After hearing evidence, it found that the 2007 EPA
would have no physical impact on the existing water levels in the Nechako River and would
not change the current management of the river’s fishery. It also found that the approval of
the 2007 EPA would not generate any transfer or change in the project’s licences or
operations. Having found no adverse impact on CSTC’s interests, the Commission found that
there was no duty to consult and no need to expand the scope of its deliberations to address
CSTC’s concerns.
This led to two issues at the Supreme Court of Canada: first, whether the Commission had
jurisdiction to consider consultation and, second, whether the Commission’s refusal to
rescope the inquiry to consider consultation should be set aside. To resolve these issues, the
Supreme Court found it necessary to consider when a duty to consult would arise and the role
of tribunals in relation to the duty (at para 30).
The following excerpt includes only the discussion of when the duty arises. A discussion
of the role of tribunals in relation to the duty is provided in Section VI.B.1.]
McLACHLIN CJ (for the Court):
A. When Does the Duty to Consult Arise?
[31] The Court in Haida Nation answered this question as follows: the duty to consult
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” (para. 35).
This test can be broken down into three elements: (1) the Crown’s knowledge, actual or
constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and
(3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or
right. I will discuss each of these elements in greater detail. First, some general comments on
the source and nature of the duty to consult are in order.
[32] The duty to consult is grounded in the honour of the Crown. It is a corollary of the
Crown’s obligation to achieve the just settlement of Aboriginal claims through the treaty
process. While the treaty claims process is ongoing, there is an implied duty to consult with
the Aboriginal claimants on matters that may adversely affect their treaty and Aboriginal
rights, and to accommodate those interests in the spirit of reconciliation: Haida Nation, at
para. 20. …
[33] The duty to consult described in Haida Nation derives from the need to protect
Aboriginal interests while land and resource claims are ongoing or when the proposed action
may impinge on an Aboriginal right. Absent this duty, Aboriginal groups seeking to protect
their interests pending a final settlement would need to commence litigation and seek
interlocutory injunctions to halt the threatening activity. These remedies have proven time-
consuming, expensive, and are often ineffective. Moreover, with a few exceptions, many
Aboriginal groups have limited success in obtaining injunctions to halt development or
activities on the land in order to protect contested Aboriginal or treaty rights.
[34] Grounded in the honour of the Crown, the duty has both a legal and a constitutional
character: R. v. Kapp, 2008 SCC 41, [2008] 2 SCR 483, at para. 6. The duty seeks to provide
protection to Aboriginal and treaty rights while furthering the goals of reconciliation between
Aboriginal peoples and the Crown. Rather than pitting Aboriginal peoples against the Crown
in the litigation process, the duty recognizes that both must work together to reconcile their
interests. It also accommodates the reality that often Aboriginal peoples are involved in
exploiting the resource. Shutting down development by court injunction may serve the
interest of no one. The honour of the Crown is therefore best reflected by a requirement for
consultation with a view to reconciliation.
[35] Haida Nation sets the framework for dialogue prior to the final resolution of claims
by requiring the Crown to take contested or established Aboriginal rights into
account before making a decision that may have an adverse impact on them: J.
Woodward, Native Law, vol. 1 (loose-leaf), at p. 5-35. The duty is prospective, fastening on
rights yet to be proven.
[36] The nature of the duty varies with the situation. The richness of the required
consultation increases with the strength of the prima facie Aboriginal claim and the
seriousness of the impact on the underlying Aboriginal or treaty right: Haida Nation, at paras.
43-45, and Taku River Tlingit First Nation v. British Columbia (Project Assessment
Director), 2004 SCC 74, [2004] 3 SCR 550, at para. 32.
[37] The remedy for a breach of the duty to consult also varies with the situation. The
Crown’s failure to consult can lead to a number of remedies ranging from injunctive relief
against the threatening activity altogether, to damages, to an order to carry out the
consultation prior to proceeding further with the proposed government conduct: Haida
Nation, at paras. 13-14.
[38] The duty to consult embodies what Brian Slattery has described as a “generative”
constitutional order which sees “section 35 as serving a dynamic and not simply static
function” (“Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433, at
p. 440). This dynamicism was articulated in Haida Nation … [quotation from Haida
Nation para 32 omitted].
As the post-Haida Nation case law confirms, consultation is “[c]oncerned with an ethic of
ongoing relationships” and seeks to further an ongoing process of reconciliation by
articulating a preference for remedies “that promote ongoing negotiations”: D.G.
Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (2009), at p. 21.
[39] Against this background, I now turn to the three elements that give rise to a duty to
consult.
(1) Knowledge by the Crown of a Potential Claim or Right

[40] To trigger the duty to consult, the Crown must have real or constructive knowledge
of a claim to the resource or land to which it attaches: Haida Nation, at para. 35. The
threshold, informed by the need to maintain the honour of the Crown, is not high. Actual
knowledge arises when a claim has been filed in court or advanced in the context of
negotiations, or when a treaty right may be impacted: Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388, para. 34. Constructive
knowledge arises when lands are known or reasonably suspected to have been traditionally
occupied by an Aboriginal community or an impact on rights may reasonably be anticipated.
While the existence of a potential claim is essential, proof that the claim will succeed is not.
What is required is a credible claim. Tenuous claims, for which a strong prima facie case is
absent, may attract a mere duty of notice. As stated in Haida Nation, at para. 37:

Knowledge of a credible but unproven claim suffices to trigger a duty to consult and
accommodate. The content of the duty, however, varies with the circumstances, as discussed
more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a
stronger claim may attract more stringent duties. The law is capable of differentiating
between tenuous claims, claims possessing a strong prima facie case, and established claims.

[41] The claim or right must be one which actually exists and stands to be affected by the
proposed government action. This flows from the fact that the purpose of consultation is to
protect unproven or established rights from irreversible harm as the settlement negotiations
proceed: Newman, at p. 30, citing Haida Nation, at paras. 27 and 33.

(2) Crown Conduct or Decision

 [42] Second, for a duty to consult to arise, there must be Crown conduct or a Crown
decision that engages a potential Aboriginal right. What is required is conduct that may
adversely impact on the claim or right in question.

[43] This raises the question of what government action engages the duty to consult. It has
been held that such action is not confined to government exercise of statutory powers: Huu-
Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697, [2005] 3
C.N.L.R. 74, at paras. 94 and 104; Wii’litswx v. British Columbia (Minister of Forests), 2008
BCSC 1139, [2008] 4 C.N.L.R. 315, at paras. 11-15. This accords with the generous,
purposive approach that must be brought to the duty to consult.

[44] Further, government action is not confined to decisions or conduct which have an
immediate impact on lands and resources. A potential for adverse impact suffices. Thus, the
duty to consult extends to “strategic, higher level decisions” that may have an impact on
Aboriginal claims and rights (Woodward, at p. 5-41 (emphasis omitted)). Examples include
the transfer of tree licences which would have permitted the cutting of old-growth forest
(Haida Nation); the approval of a multi-year forest management plan for a large geographic
area (Klahoose First Nation v. Sunshine Coast Forest District (District Manager), 2008 BCSC
1642, [2009] 1 C.N.L.R. 110); the establishment of a review process for a major gas pipeline
(Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC 1354, [2007] 1
C.N.L.R. 1, aff’d 2008 FCA 20, 35 C.E.L.R. (3d) 1); and the conduct of a comprehensive
inquiry to determine a province’s infrastructure and capacity needs for electricity
transmission (An Inquiry into British Columbia’s Electricity Transmission Infrastructure &
Capacity Needs for the Next 30 Years, Re, 2009 CarswellBC 3637 (B.C.U.C.)). We leave for
another day the question of whether government conduct includes legislative action: see R. v.
Lefthand, 2007 ABCA 206, 77 Alta. L.R. (4th) 203, at paras. 37-40

(3) Adverse Effect of the Proposed Crown Conduct on an

Aboriginal Claim or Right

[45] The third element of a duty to consult is the possibility that

the Crown conduct may affect the Aboriginal claim or right. The
claimant must show a causal relationship between the proposed
government conduct or decision and a potential for adverse
impacts on pending Aboriginal claims or rights. Past wrongs,
including previous breaches of the duty to consult, do not suffice.

[46] Again, a generous, purposive approach to this element is in

order, given that the doctrine’s purpose, as stated by Newman, is
“to recognize that actions affecting unproven Aboriginal title or
rights or treaty rights can have irreversible effects that are not in
keeping with the honour of the Crown” (p. 30, citing Haida
Nation, at paras. 27 and 33). Mere speculative impacts, however,
will not suffice. As stated in R. v. Douglas, 2007 BCCA 265, 278
D.L.R. (4th) 653, at para. 44, there must an “appreciable adverse
effect on the First Nations’ ability to exercise their aboriginal
right.” The adverse effect must be on the future exercise of the
right itself; an adverse effect on a First Nation’s future negotiating
position does not suffice.

[47] Adverse impacts extend to any effect that may prejudice a

pending Aboriginal claim or right. Often the adverse effects are
physical in nature. However, as discussed in connection with
what constitutes Crown conduct, high-level management
decisions or structural changes to the resource’s management
may also adversely affect Aboriginal claims or rights even if these
decisions have no “immediate impact on lands and resources”:
Woodward, at p. 5-41. This is because such structural changes
to the resources management may set the stage for further
decisions that will have a direct adverse impact on land and
resources. For example, a contract that transfers power over a
resource from the Crown to a private party may remove or reduce
the Crown’s power to ensure that the resource is developed in a
way that respects Aboriginal interests in accordance with the
honour of the Crown. The Aboriginal people would thus
effectively lose or find diminished their constitutional right to
have their interests considered in development decisions. This is
an adverse impact: see Haida Nation, at paras. 72-73.