Tansi Nîtôtemtik,
This week we are discussing the Crown’s duty to consult. Today’s post is about the change made to the duty to consult that came from the 2021 case Ermineskin Cree Nation v Canada (Environment and Climate Change). [1]
Photo credit: https://ermineskin.ca/history-culture/
“The Government of Canada has a duty to consult, and where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights.” [2] This duty to consult has been affirmed by the Supreme Court of Canada in cases such as Haida Nation v British Columbia (Minister of Forests), Taku River Tlingit First Nation v British Columbia (Project Assessment Director), Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), Beckman v Little Salmon/Carmacks First Nation, and Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council. [3]
Before the Ermineskin Cree Nation v Canada case, the duty to consult focused on situations where an Indigenous community opposed the Canadian government’s considered conduct, rather than when it was relying on, or in support of, that conduct. The decision in the Ermineskin case makes it clear that the Crown must consult not only with First Nations that oppose the particular project development, but also those in support of the project, as long as their Aboriginal or Treaty rights may be adversely impacted. [4]
The Ermineskin case also recognized that the duty to consult arises when an Indigenous nation holds economic interests in a project that are derived from, or closely related to, Aboriginal or Treaty rights. [5] Economic interests include “negotiated benefits that would be adversely affected by Crown conduct that may cause project delays or refusals.” [6] In the Ermineskin case, the existence of “a potential economic interest that may or may not materialize in the future” was sufficient to trigger the Crown’s duty to consult. [7]
More specifically, the Nation had “negotiated compensation for Aboriginal and Treaty rights through an Impact Benefits Agreement,” and the court decided that “economic and community benefits arising from these agreements are entitled to protection through the Crown’s duty to consult given that they are closely related to underlying Aboriginal or Treaty rights as an accommodation measure.” [8]
The Ermineskin case made it clear that the duty to consult applies when a First Nation has potential economic interests in the project, and the duty must be carried out not just for those in opposition, but also those in support of the project. This important ruling supports the concept that Aboriginal and Treaty rights, as well as corresponding Crown duties, must evolve and adapt overtime, and emphasizes that recognition of Indigenous economic interests is part of reconciliation. [9]
There is hope that the Ermineskin decision will “increase the value of Indigenous partnership” and “promote negotiation and economic benefit sharing between proponents and potentially affected Indigenous groups.” [10] It is also a reminder that Indigenous nations across Canada are not one and the same; they may oppose or support development projects depending on the specific circumstances, and must be consulted when their rights may be impacted, regardless of their stance.
The Ermineskin case is an exciting example of how the Crown’s duty to consult can adapt overtime to better fit contemporary circumstances. The case also shows that small changes and large changes alike can have positive implications for reconciliation. Reconciliation is advanced when the Crown fulfills its duties to Indigenous nations, such as the duty to consult, and recognizes nations as partners in negotiations.
Until next time,
Team Reconcili-ACTION YEG
[1] Ermineskin Cree Nation v Canada (Environment and Climate Change), 2021 FC 758
[2] “Government of Canada and the duty to consult” (12 September 2021), online: Government of Canada <https://www.rcaanc-cirnac.gc.ca/eng/1331832510888/1609421255810>.
[3] Ibid.
[4] Sean Sutherland and Maeve O’Neill Sanger, “Federal Court recognizes the Crown’s duty to consult on economic benefits linked to Aboriginal rights” (26 July 2021), online: Osler <https://www.osler.com/en/resources/regulations/2021/federal-court-recognizes-the-crown-s-duty-to-consult-on-economic-benefits-linked-to-aboriginal-right>.
[5] John Gailus and Sayre Potter, “Case Brief: Ermineskin Cree Nation v. Canada (Environment & Climate Change), 2021 FC 758” (2022), online: DGW Law Corporation <https://www.dgwlaw.ca/case-brief-ermineskin-cree-nation-v-canada-environment-climate-change-2021-fc-758/>.
[6] Supra note 4.
[7] Ibid.
[8] Supra note 5.
[9] Supra note 4.
[10] Ibid.