Aboriginal Peoples and the Duty to Consult: Implications for Land Development
As Canada moves forward with Aboriginal reconciliation, the issue of the Duty to Consult Aboriginal peoples will arise more frequently in land development. The Duty to Consult exists whenever the Crown, meaning the Federal or Provincial governments knows, or should have known, of the existence of the Aboriginal and treaty rights. As sign of things to come, the Province has recently included language in the Growth Plan recognizing that Aboriginal communities may have Aboriginal rights within the Plan area.
The law surrounding the Duty to Consult is just beginning to develop. Along with the development of the law comes implications for land development. A recent case, Saugeen First Nation v Ontario, serves as a reminder of the following important implications of the Duty to Consult:
· As a matter of Constitutional importance, the Crown needs to assess the level of consultation required when the issue of Aboriginal and treaty rights arises.
· The Duty to Consult, if it is not discharged, can halt progress on a project, despite other approvals being obtained. In Saugeen the project was a quarry that had gone through a ten year approval process, and had been approved. Notwithstanding the approval, the licence was set aside due to a failure to discharge the Duty to Consult.
· Consideration should be given to joining any approval process and the Duty to Consult to reduce the risk of project delay and minimize duplication.
· The Duty to Consult does not rest on the proponent of a project. Even though some part of the process of consultation may be delegated to a proponent, the Duty to Consult always remains a responsibility of the Crown.
· The Duty to Consult may require the Provincial or Federal governments to fund the expertise required to allow for meaningful engagement of Aboriginal interests. In Saugeen, the Province was required to pay $10,914 to allow Saugeen First Nation and Chippewas of Nawash Unceded First Nation to engage experts to assist in their review of the project.
Though Saugeen deals with a quarry, the principles will apply to any development where there are known or suspected Aboriginal Rights. Though it is impossible to anticipate where the Duty will arise without specific information, projects where the duty to consult might arise include:
· boundary expansions,
· hamlet developments,
· water oriented development,
· economic development projects like highway transportation depots,
· infrastructure projects, such as, highways and airports, and,
· resource development projects.