Duty to Consult: ONTARIO

As they have since the beginning of the reclamation in 2006, Six Nations Confederacy actions continue to keep pace with developing Case Law in Canada that supports their position. The recent decision of the Ontario Court of Appeal re KI and AAFN is fully relevant to Six Nations and throughout Ontario, and upholds their right to be consulted regarding any development on their traditional land. http://www.ontariocourts.on.ca/decisions/2008/july/2008ONCA0534.htm Interpreted here: http://www.mondaq.com/article.asp?articleid=63390&login=true The court expressed the opinion that when a court is asked by a private party to grant an injunction which may have an adverse impact on an asserted aboriginal or treaty right protected by section 35 of the Constitution Act, "such cases demanded careful and sensitive balancing of many important interests in accessing whether to grant the requested injunction and on what terms". And... The court found that this clear line of jurisprudence required that where constitutionally protected aboriginal rights are asserted, "injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests". The Court of Appeal cautioned in particular that if the injunction is intended to create a "protest free zone" for contentious private activity that impacts upon an asserted aboriginal right, the court must be extremely careful to ensure that the duty to consult with the First Nation has been fully and faithfully discharged and that every effort had been exhausted to obtain a negotiated or legislated solution. Concluding that ...

The Court of Appeal made a clear statement in Frontenac that it would no longer be acceptable for private parties to seek injunctions as a first response to prevent protest action by First Nations with legitimate aboriginal rights or land claims and then institute contempt proceedings against protestors for failure to comply. (Thus, injunctions are useless.)

The Court of Appeal applied the Supreme Court of Canada's established jurisprudence and held that there is a duty on the Crown, as well as private parties, to negotiate with indigenous communities in order to resolve conflicting interests. (Thus, developers must consult with Six Nations.)

Following these decisions, it will be increasingly important for private stakeholders in Ontario with an interest in property over which an aboriginal rights claim has been asserted to be cognizant of, and sensitive to, those indigenous interests. (Thus, companies and their investors need to be consider "Aboriginal Rights" in their decisions.)

This latter point is interesting since our federal and provincial governments don't tell any company or their investors that the land is 'encumbered' with Aboriginal Rights when they issue development permits. There is nothing in the Land Registry. It isn't clear how the private sector is supposed to know. It is clear, though, that they must consult. Aside - One general implication is that Canada (and all companies with land assets) overvalues its land assets on the stock market, because the encumbrance of Aboriginal Rights is not disclosed. I think this is potentially a very serious problem for Canada, but it is likely why Canada is selling off resources at half price and approving developments at the speed of lightening - to try to stay ahead of the court decisions on Aboriginal Rights and Titles. Too late now. Canada has set it up so that (largely) foreign companies will pay the cost of "Aboriginal Rights" in Canada. Companies already committed, to whom this 'encumbrance' was not disclosed, must consult with Six Nations and come to agreement about developments (or not), and revenue sharing. But Canada is selling off land and resources at bargain basement prices right now so there is some flex room. All's well that ends well?