Establishing the Duty to Consult

In Canada, the Crown may be required to consult Aboriginal peoples before making decisions relating to mining activities. This legal and constitutional duty to consult arises where:

1. the Crown knows of the potential existence of the Aboriginal title or right;
2. the Crown contemplates conduct or proposes a decision; and
3. that conduct or decision under consideration may have an adverse impact on the claimed Aboriginal title or right.¹⁰⁰

Where these three factors are met, the Crown is legally and constitutionally obligated to consult the affected Aboriginal peoples.¹⁰¹ Although the Crown may delegate certain procedural aspects of this duty to third parties (such as mining proponents), the Crown alone has “the ultimate legal responsibility for consultation and accommodation”.¹⁰²
The duty to consult is often evoked in government decisions relating to mining activities. This is because mining activities often threaten the ability of Aboriginal peoples to exercise their Aboriginal rights.¹⁰³ In the words of the Federal Court, “when test drilling on unoccupied Crown land may affect an aboriginal right to hunt, trap or fish on the land, there is a constitutional obligation to consult with the affected party”.¹⁰⁴ Such a duty was recently found by the British Columbia Court of Appeal in West Moberly First Nation v British Columbia.¹⁰⁵ In that case, the provincial government decided to amend an existing permit to allow the proponent to expand exploration activities. The court held that the government had a duty to consult the West Moberly First Nation before amending the permit on the grounds that the expansion may adversely affect their Aboriginal right to hunt caribou.¹⁰⁶
The BC Court of Appeal held recently that consultation is also required at the stage of staking mineral claims. The case arose from the Yukon (which shares the Court of Appeal with BC). Like BC, the Yukon mining laws are based on the free entry system, although the staking system is somewhat different from BC’s on-line staking. The Court of Appeal stated that “statutory regimes that do not allow for consultation and failed to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist”.¹⁰⁷