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Recent decisions provide insight into Crown’s duty to consult with Indigenous groups – Indigenous Law Insights November 2021 (webinar)

Author(s): Isabelle Crew, Sander Duncanson, Chris Barnett

Dec 2, 2021

In the inaugural session of Osler’s new Indigenous Law Insights monthly webinar series, members of our Indigenous Law team reviewed a few recent decisions and ongoing cases with important implications for the Crown’s duty to consult. These matters reflect an emerging trend in the case law of the expanding application of the duty to consult in the context of Indigenous economic interests.

Sander Duncanson, a partner in the firm’s Regulatory, Environmental, Indigenous and Land group, recaps this summer’s decision in Ermineskin Cree Nation v. Canada (Environment and Climate Change), where the Federal Court affirmed the Crown’s duty to consult with Indigenous groups that hold economic benefits derived from or closely related to their Aboriginal or treaty rights. Ermineskin Cree, an Indigenous group, holds an impact benefit agreement with the operators of a thermal coal mine in Alberta. It argued that its economic interests under the agreement stood to be negatively affected by the federal Minister of the Environment’s designation of the site for an impact assessment, as it would delay the expansion, at minimum.

While both Ermineskin and the federal government agreed that no consultation had taken place on the designation decision, Canada insisted that it did not owe a duty to consult on economic benefits. Ultimately, the Federal Court sided with Ermineskin, finding that the duty was triggered because Ermineskin’s economic rights are closely related to and derive from its Aboriginal and treaty rights.

“Because of the relatively low threshold for triggering the duty to consult, the Court found that the potential economic interest that may materialize in the future is sufficient to trigger the duty,” Sander says.

“If the Ermineskin decision is upheld on appeal, that will require a fundamental change to the way that the federal government approaches this.”

Chris Barnett, a partner in Osler’s Municipal, Land Use Planning & Development and Real Estate practice groups, discussed two instances in Ontario concerning the use of ministerial zoning orders. After a resolution to request a zoning order was passed in Cambridge, Ontario, the local Indigenous and broader communities raised concerns about a lack of consultation. In response, the Minister of Municipal Affairs has stated in the legislature and written to the city to request information about the amount of consultation that occurred before the request. While this matter is still ongoing, the Minister could revoke the order if not satisfied with the level of consultation, Chris says.

Similarly, in Innisfil, Ontario, the Williams Treaties First Nations have commenced an application for judicial review, seeking to quash a zoning order around the proposed expansion of the GO commuter rail line, arguing that the government failed to uphold the honour of the Crown.

“Those are two circumstances where the Minister’s obligation to consult as part of using the power that he has to enact these zoning orders has been challenged on the basis of the duty to consult,” Chris says. “The nature of the Minister's duty in relation to this somewhat unique power that he has under the Planning Act is something that will get a response from the courts on within the next year to 18 months.”

Judicial consideration of the duty to consult, in various jurisdictions across Canada, continues to evolve. Though a decision in one provincial court would not be legally binding in another, they reflect a growing trend that could significantly affect Indigenous groups, resource developers and governments.

“While the facts may be provincially specific, those broader legal principles, I think, will be given consideration in other provinces,” Chris says. “And these issues do have a tendency to make their way to higher courts, as well.”

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