Wahgoshig – Reconciliation and the need for enforceable remedies

It’s been a while since I posted. I left off with some thoughts on consent, mostly a reaction to published reports by aboriginal rights experts suggesting there is not a shred of a basis for the application of consent in Canadian law. I had hoped to move on to some other posts, particularly about intersections between environmental law and aboriginal rights (a timely topic given the recent legislative activity on environmental law at the federal and provincial levels). But something caught my eye a couple of weeks ago, and I simply can’t let it go.

The case is Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario (http://canlii.ca/t/fphj5). I like this case because the court makes some important (in my mind, critical) observations about reconciliation. These observations have probably been argued in other cases, hopefully in Supreme Court cases, but this is the nicest articulation I’ve seen on reconciliation in quite some time.

Wahgoshig involved a request for injunctive relief, pending the outcome of a claim Wahgoshig First Nations intended to file. This is very interesting to me because only a few posts back, I highlighted one of the reasons for the duty to consult and accommodate is the incredible difficulty First Nations have experienced obtaining injunctions to halt resource projects, pending the outcome of aboriginal rights litigation. On the other hand, it appears Wahgoshig’s anticipated claim rests, in part, on the duty to consult and accommodate.

The court held that the company involved in this case made a deliberate attempt to avoid consulting Wahgoshig First Nation until it had completed a round of financing. What’s more (and deserving of mention in a future post on the importance of corporate social responsibility, the court also found that the resource company did not adhere to industry guidelines on aboriginal consultation established by a national (international?) mining industry association.

At paragraph 71, the Court notes, “I am mindful of the importance of reconciliation and the derivative concepts of consultation and accommodation as they have developed in Canadian jurisprudence. I am further mindful of the Crown’s position that an injunction would not foster relations, but would exacerbate tensions. While a facilitation of the duty to consult is preferable, it is not always possible.”

Yes, reconciliation is about discussion. And yes, as many courts have noted, negotiation and discussion is the preferred way to achieve reconciliation. But this doesn’t mean that courts should simply refuse to issue remedies, particularly in cases such as this, where it appears there may have been deliberate attempts to ignore First Nations rights. In fact, courts have a critical role to play in facilitating negotiations by pronouncing on rights and awarding remedies. In so doing, courts establish much needed incentives to bring governments, industry and First Nations into negotiations with each other.

Indeed, this is as much as the court states in paragraph 72, where the court considers that failing to award the preferred remedy, here an injunction, “will send a message that Aboriginal and treaty rights, including the rights to consultation and accommodation can be ignored by exploration companies, rendering the First Nations constitutionally–recognized rights meaningless. This would not be in the public interest. It is in the public interest to ensure that the Constitution is honoured and respected.” [emphasis added]

This was a very powerful (its power comes from its intuitive simplicity – as in, why didn’t I argue that?) argument by Wahgoshig’s counsel. Paragraphs 71 and 72 of this decision should be cited by counsel for First Nations as often as possibly, particularly when the issue of remedy arises. The concept of reconciliation does mean that negotiations between the Crown and First Nations should be encouraged. But it is the Crown which much conduct those negotiations. Courts play an especially important role in upholding the rule of law, and in so doing, create the necessary incentives for those negotiations to occur, and to proceed at an appropriate pace.

The larger the issue (aboriginal title, recognition of commercial rights, invalidating key provisions of the Indian Act), the more important it is for courts to award remedy. In doing so, courts encourage reconciliation, not chaos.

All this said (or written), there was one very minor part of this decision which I found quite irritating. At paragraph 20, the court noted that Wahgoshig had initially claimed that no exploration activities could occur in its traditional territory without Wahgoshig First Nation’s free prior and informed consent (well, technically “prior consent”). Yet, Wahgoshig “conceded in argument that this was not the law of Canada”, and instead opted to proceed on the argument that the First Nation had not been consulted and accommodated.

Now, this was a very well argued case (at least, it appears that way to me). And to be honest, I can understand abandoning an argument based on free, prior and informed consent because demonstrating that right can take a relatively simple case (and this one is pretty straightforward, based on the court’s conclusions with respect to engagement by the company) and turn it into a very complex, very expensive legal battle.

But why concede that free, prior and informed consent is not the law of Canada? Given I’d hoped to move on after a few posts criticizing the suggestion consent has no basis in Canadian law, I’m beginning to think it might be productive to take on the much more ambitious (and time consuming) project to suggest that free, prior and informed consent either is the law of Canada already, or will be in a very short time.

Free, prior and informed consent is basically a concept at international law, so I’ll devote my next post to applying international law in domestic courts. After that, I’ll devote some space to free, prior and informed consent in international law. And I’ll close with a note on terminology and some thoughts on why I think consent may already be a concept under Canadian law (recapping some of my previous thoughts from a couple of posts back).