A couple of really interesting cases, at least to people like me! (I work on aboriginal policy issues as a day job)
Here’s the question: Does the duty to consult apply to ‘policy decisions’?
Why is it important: The vast majority of decisions made by government which impact on aboriginal peoples are policy decisions
Here’s the problem: Policy decisions are generally not actionable
In Canada, decisions of ‘policy’ have long been shielded from scrutiny by the courts. There is a longstanding deference given to the government by the courts on ‘policy questions’ because policy issues are ‘polycentric’ – they involve a number of considerations (economic, distributive) that are not easily litigated, nor comprehended by the courts (which specialize on the law)
In Negligence, for example, it has long been held that there is a distinction between ‘policy actions’ and ‘operational actions’: policy actions cannot be sustained. A good example would be that allocating funding for road repairs (a policy decision) will not give rise to a negligence claim, whereas actually doing the road repairs (an operational action) would.
Honour of the Crown/duty to consult
Let’s be clear – the duty to consult and accommodate, as currently understood, applies only to claims of aboriginal rights, aboriginal title and treaty rights that have not been proved. Court have not held that there is an overarching or general duty to consult. And yet, some have argued since Delgamuukw (and before) that the Crown is require to "meaningfully consult" with aboriginal groups, prior to making policy decisions that might impact on aboriginal or treaty rights. (Unfortunately, most lawyers will assure you that the ratio, or the main point of law decided, in Delgamuukw really had little to do with consultation – the case is best thought of for the proposition that oral evidence of aboriginal elders is admissible into evidence. Notwithstanding, other statements by the court, in that case about consultation, are instructive and ought to be – and is – persuasive to policymakers).
However, it is becoming clear that the Honour of the Crown may impose a duty to consult on ‘higher level’ or policy decisions in certain circumstances. This position is pretty clearly articulated by the Supreme Court of Canada in Rio Tinto at para. 87, “As discussed above, a duty to consult may arise not only with respect to specific physical impacts, but with respect to high-level managerial or policy decisions that may potentially affect the future exploitation of a resource to the detriment of Aboriginal claimants.”
We should expect to see some caselaw developing in the aftermath of Rio Tinto that’s focused on ‘high-level management or policy decisions’. And we’re starting to see it, and it will be really interesting to see the evolution (expanding or limiting) of the scope of the duty to consult with respect to policy decisions.
In Adam’s Lake, the BC Supreme Court held that incorporation of a municipality invokes the Honour of the Crown and requires consultation. This case involves the much contested Sun Peaks Ski development. The court held that incorporation of a municipality would sufficiently disturb governance of the land, particularly land-use decisions, that it would prejudice the claimed aboriginal rights of the Adam’s Lake Band (at para 152):
The Municipality is not subject to the supervision of the Province except in regard to land use by-laws and the establishment of an official community plan. Thus the Municipality may potentially pass by-laws, make regulations, and establish financial policies that adversely impact the aboriginal rights and title claimed by the Band absent the supervision or control exercised by the Province and the Regional District prior to incorporation.
Having ruled in favour of Adams Lake, the court nonetheless refused to quash the order incorporating the municipality.
This case is currently on appeal, and it is one to watch.
Then we have the Adam’s case. In this case the Minister of Environment was ordered to develop a habitat restoration plan for a particular Caribou population, pursuant to the Species at Risk Act. However, the court went a step farther and suggested that “A broader view is required to be taken. This includes assessing the extent to which the ongoing violation of the SARA (by failing to post a Recovery Strategy) and continued inaction with respect to the boreal caribou would, in all of the circumstances discussed in this decision and in the more detailed Certified Record pertaining to the Decision, would be consistent with the honour of the Crown”.
Broader view, indeed. I wouldn’t be surprised if this case is also under appeal. Why? Because ‘continued inaction’ is often how the government responds to aboriginal concerns. This is likely due to the complexity of the area: legally, one must consider the effect on aboriginal rights (apparently) and Charter rights (particularly discrimination); fiscal considerations (there’s a limit to how much a government will spend on aboriginal issues); federal/provincial issues; federal-First Nations politics; among many other, lesser issues.
I imagine there is very little sympathy for this complexity at the community level – where most of the problems are manifested and the snail’s pace of progress is often all-too evident.
It’s also true that much of this complexity is attenuated when there is a good deal of political will to take action. (Of course, aboriginal groups aren’t exactly a major demographic, nor major funders of political parties – political clout is somewhat limited)
Without straying into other policy areas, the Adams decision suggests that continued inaction on the depletion of resources that are critically important to First Nations may itself be inconsistent with the honour of the Crown.
I find this an uncontroversial assertion with potentially wide-ranging impacts, considering the relatively high number of species that are currently or soon will be in decline. This, combined with the avariciousness of development in some parts of this country, means Ministers may need to consider the need to act a bit more carefully. More accurate; Minster’s will need to document instances of inaction. That documentation will make some interesting reading…
I must also say that a requirement to consult with aboriginal nations would lead to productive and meaningful dialogue between policy makers and rights holders. Moreover, the duty to consult requires good faith from all Parties, meaning the policy exchanges would need to be substantive and ‘evidence based’, rather than mere posturing. I believe this is a dialogue needed across the board on aboriginal policy issues. Given the problems have existed for so long and seem so intractable, the recognition of a duty to consult in the context of policy decisions gives me considerable hope for the future of aboriginal policy and the social, economic and juridical condition of aboriginal peoples.