The Duty to Consult Aboriginal Peoples
Government Approaches to Unresolved Issues
The Aboriginal jurisprudence of the McLachlin Court encourages governments and Aboriginal communities to reach negotiated solutions to land and harvesting disputes without resort to litigation. The resolution of Aboriginal rights and treaty interpretation issues through adversarial judicial proceedings can be difficult for all parties, and the Supreme Court has encouraged negotiations through the requirement that the Crown engage in dialogue with Aboriginal communities. The establishment of the duty has also removed an incentive to litigation arguably created by the Supreme Court itself in Sparrow, since it is no longer necessary to prove claims in court in order to obtain Crown consultation and accommodation. In effect, the convergence of the government justification for breaches under the Sparrow test with the new duty to consult, combined with the opening of opportunities to address the very significant non-rights based needs of Aboriginal communities, may help the process of negotiated resolution and reduce the volume of Aboriginal litigation.
Disputes over broader government policy may also be reduced. Whether or not the duty to consult applies to legislative initiatives, the Haida decision has altered the way in which governments ensure meaningful input of the Aboriginal community into broader policy making. Examples include the 2009 amendments to Ontario’s Mining Act that modernized the mining regime, and Ontario’s legislation enacted in 2010 regarding land use planning in the far north of the province. As part of the process of legislative reform of the mining legislation, Aboriginal leaders from across the province met regularly over several weeks to discuss provisions for notice, consultation, and accommodation. In addition, community-level information sessions were organized by both the Ministry and the PTOs to discuss the reforms. Among the changes to the legislation made as a result of the process was the inclusion of a purpose clause that expressly recognizes the constitutional duty to consult.
Lori Sterling is Deputy Minister at the Ontario Ministry of Aboriginal Affairs.
Peter Landmann is counsel with the Ontario Ministry of the Attorney General.