The Consequences of Failure to Consult with and Accommodate First Nations

The B.C. Supreme Court recently issued a judgment of great importance to local governments, in the field of first nations law. Halalt First Nation v. British Columbia (Minister of Environment), 2011 BCSC 945 (“Halalt”) deals with the duty of the Crown to consult with and accommodate first nations, and the consequences of failing to do so, not only for the Crown but for local governments as well.

While the duty to consult and accommodate remains, as a matter of law, a duty of the Crown, Halalt makes clearer than ever a developing trend in the cases, namely that in reality, the burden of the duty to consult and accommodate is increasingly falling upon third parties. This is the case for two reasons. One is that the Crown often explicitly downloads the actual work of its duty on third parties. The other is that when the Crown fails to fulfill its duty, as in Halalt, the projects of third parties are placed in jeopardy. In other words, local governments and other third parties are finding themselves paying the price for the Crown’s mistakes.

The facts set out in the Halalt judgment are extraordinarily lengthy, and not easily summarized. However, some explanation of the circumstances is necessary in order to arrive at an understanding of the Court’s decision.

The District of North Cowichan (“North Cowichan”) sought to obtain a Certificate of Approval from the Ministry of Environment under the Environmental Assessment Act, in order to construct new wells to provide drinking water to the community of Chemainus. The existing water supply was inconsistent, particularly during the dry summer months, and subject to turbidity during winter rains. Several regulatory authorities had jurisdiction over the proposed project, including the federal Ministry of Environment, the federal Department of Fisheries and Oceans, and the BC Ministry of Environment. North Cowichan took advantage of the option to pursue a single Certificate of Approval under the Environmental Assessment Act, which would act as approval under the various  federal and provincial statutes. The joint assessment process involved the participation of the interested authorities.

The Crown acknowledged at the outset of the assessment process that the Halalt First Nation (“HFN”) would need to be consulted with. HFN claims aboriginal title to the lands on which the wells were to be located, and it also claims various rights in relation to the water flowing through the Chemainus River, a river that is connected to the aquifer from which the wells would draw water.

HFN was invited to participate in a “working group” comprised of the various interested parties, and it did so. However, events would demonstrate that the real decision-making took place outside of the working group, for the most part, in meetings to which HFN was not invited. Over the course of several years, as the assessment process inched forward, HFN was occasionally informed of developments, and was given some funds to pay for advice and studies of consultants, but its exclusion from the true decision-making process largely deprived it of the opportunity to participate in a meaningful way.

In the earlier stages, at least, HFN’s concerns about the degree of depletion of water levels in the Chemainus River seemed to be taken seriously. HFN took the position that it should have a significant level of control over the eventual operation and impact of the wells, referred to by HFN as “a hand on the tap”. Instead of engaging directly with HFN to seek a workable compromise, North Cowichan unilaterally proposed a modification of the scope of the project, reducing the number of wells from two to one and restricting summer pumping to emergencies only, pending further study of the impact of the wells on the aquifer and the river. The determination of what would constitute an “emergency” sufficient to justify summer pumping was to be left to North Cowichan and the Vancouver Island Health Authority. This modification was approved by the Crown, and was later argued by the Crown to be an accommodation of HFN’s interests, following on “deep” consultation, fulfilling its duty. HFN objected that it had not been adequately consulted with or accommodated, and brought its petition before the Court to stop the project.

The legal test for whether the Crown has fulfilled its constitutional duties to consult with and accommodate first nations is a matter of settled law. The test, as summarized by the Court at paragraph 445 of Halalt, has three stages:

  1. Did the Crown have knowledge of a potential Aboriginal claim or right?
  2. Did the Crown’s contemplated conduct have the potential to adversely affect the claim or right?
  3. What was the scope and content of the duty to consult and accommodate in the circumstances of the particular case, and was that duty adequately met?

As noted by the Court, determination of the third question requires both a preliminary assessment of the strength of the claim, and a consideration of the seriousness of the potentially adverse affect.

Ultimately, the Court concluded that the Crown had knowledge of HFN’s claims and rights, that its contemplated conduct (approval of the project) had the potential to adversely affect those claims and rights, and that HFN was not properly consulted. Since HFN was not properly consulted, the extent to which it should have been accommodated was unknown. Despite the Crown’s protestations that it had engaged in “deep” consultation and that it had, by allowing a change in the scope of the project, accommodated the interests of HFN, the Court held that the Crown had failed in its duty.

What is of greatest concern to local governments is the remedy the Court ordered. It ordered a “stay” of the Certificate of Approval, pending adequate consultation and accommodation, effectively freezing the project in its tracks. Even though the Court was aware of the importance of the project, and North Cowichan’s need to supply safe drinking water to its inhabitants, it did not accept those circumstances as justification for the infringement of aboriginal rights.

The Court in Halalt has sent a strong message that it will hold the Crown, and those who deal with the Crown, accountable for failing to consult with and accommodate first nations.

There are several lessons to take away from Halalt:

  • The duty to consult and accommodate may, in strictly legal terms, belong to the Crown, but it is absolutely essential that those relying on the fulfillment of that duty adopt an attitude of vigilance, and hold the Crown accountable to make sure it gets done right.
  • In order to hold the Crown accountable, third parties such as local governments need to educate themselves about the law of consultation and accommodation, and investigate all aboriginal rights and interests that may be affected by whatever action or decision is proposed.
  • Fulfillment of the duty should never be assumed. If possible, some form of written acknowledgement should be obtained from every affected first nation. If agreement cannot be reached, a conclusion that the duty has been fulfilled should only be reached after an exhaustive consideration of all the circumstances, and with the benefit of legal and other expert advice.
  • The idea that a project can “sneak through” an approval while avoiding aboriginal issues, only to be immune from challenge because it’s a “done deal”, has been thoroughly discredited.

The biggest lesson, however, is that it pays to be proactive. Aboriginal title and aboriginal rights are issues that are not going to go away, and ignoring them or downplaying their significance is dangerous. The Courts have hammered home again and again that first nations must be consulted with and, where necessary, accommodated where a decision or action taken by the Crown may affect aboriginal rights or title, whether proven or claimed. Consultation must be genuine. It must be meaningful. The best advice is to get in front of the issue, address it squarely, and deal with the messiness and frustration that it can sometimes entail at the outset, rather than scrambling to address it at the eleventh hour or, even worse, after the fact when a Court has put your project in the deep freeze.

The decision of the Court is presently under appeal by the Province and North Cowichan. Recently, North Cowichan asked the B.C. Court of Appeal to stay the order of the trial judge pending a decision on the appeal, in the hopes that North Cowichan would be permitted to operate the wells in the interim. In Halalt First Nation v. North Cowichan (District), 2011 BCCA 544, the Court of Appeal declined to issue the stay, meaning the wells will remain inoperative until the appeal is decided.