MUNICIPALITIES
AND THE CONSTITUTIONAL
DUTY TO CONSULT AND
ACCOMMODATE
ABORIGINAL COMMUNITITES
THE DUTY’S HISTORICAL AND
LEGAL BASIS
 Pre-Sovereignty Occupation and Use – Here First

Wewaykum Indian Band v. Canada
 Honour of the Crown & Reconciliation of Rights –
Not Conquered, Not Ceded, Existing

Delgamuukw v. British Columbia
 Distinct from Fiduciary Duty


Surrender of reserve or title lands to Crown vs. sharing of
lands with Crowns and other entities
Haida Nation v. British Columbia (Minister of Forests)
ABORIGINAL RIGHTS ARE
CONSTITUTIONAL RIGHTS
 S. 35 Rights & Principle of Reconciliation
35.
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed.
Definition of "aboriginal peoples of Canada"
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples
of Canada.
Land claims agreements
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by
way of land claims agreements or may be so acquired.
PRIMACY OF CONSTITUTIONAL
RIGHTS

Primacy of Constitution of Canada
52. (1) The Constitution of Canada is the supreme
law of Canada, and any law that is inconsistent with
the provisions of the Constitution is, to the extent of
the inconsistency, of no force or effect.

Aboriginal Rights cannot be overridden or ignored by
Parliament or the Legislature in legislation, policy or
actions
WHEN DOES THE DUTY ARISE?
 S. 35 – Treaties, Modern Treaties, and other existing Aboriginal Rights
and Aboriginal Title
 R. v. Badger; R. v. Powley; R. v. Van der Peet; Delgamuukw v.
British Columbia; R. v. Sparrow
 most often related to historical land and water use
 Constructive knowledge of a claimed Aboriginal Right and potential
negative impact on same through a proposed project of any entity
engaging legislation, policy or activity of the Crown
 Haida Nation v. British Columbia (Minister of Forests)
 Egs. environmental approvals, forestry and mining licenses and
rehabilitation plans, road development, hydro development, sale of
Crown lands, etc.
WHAT DOES THE DUTY TO CONSULT
AND ACCOMMODATE ENTAIL?




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Measuring the strength of the claimed Aboriginal Right and potential
impact thereon of proposed project, legislation, policy or activity
Meaningful & good faith Consultation from outset of process; on the
process, the potential impact on the claimed Aboriginal Right and potential
reconciliation initiatives
Spectrum of Accommodation – Notice of proposed activity to further
Accommodation through changes to a project, approval, legislation, policy
or activity and/or compensation
Consent? Xeni Gwet’in First Nations v. British Columbia
Continuing Duty Regarding Rights and Project Evolution
 Haida Nation v. British Columbia (Minister of Forests)
 West Moberly First Nations v. British Columbia (Ministry of Energy,
Mines and Petroleum Resources)
TO WHOM DOES THE DUTY
APPLY?
 Federal Crown
 The assertion of British sovereignty in 1760 and Royal Proclamation of
1763
 Calder v. British Columbia (A.G.) – 1973 – prior occupation and use
 Honour of the Crown = duty to reconcile rights and interests in unceded lands
 Provincial Crown
 St. Catherine’s Milling and Lumber Co. v. The Queen -1888
 Confederation and s. 109 of the Constitution Act, 1867
 Non-delegable Honour of Crown and Crown responsibility to Consult and
Accommodate
 Haida Nation v. British Columbia (Minister of Forests);West Moberly
First Nations v B.C. (Ministry of Energy, Mines and Petroleum
Resources)
 Delegate procedural aspects of Duty by statute or regulation to assist in
fulfilling the Crown mandate to Consult and Accommodate
 Haida Nation v. B.C.; R. v. Adams; Rio Tinto-Alcan Inc. v. Carrier
Sekani Tribal Council
MUNICIPALITIES




Geographical statutory corporations – limited
jurisdiction and natural person powers
Not Crown Agents
No statutory delegation of the procedural aspects of
the Duty to Consult to Municipalities in Canada
Limited statutory provisions for general or Aboriginal
consultation or Ministry directives for Aboriginal
consultation do not equate to the procedural aspects
of the Duty to Consult and Accommodate

Egs. Planning Act, EAA, EPA, OWRA, HA, Green Energy
Act and MMAH, MOE and MNR directives or policies
CURRENT MUNICIPAL CASES



Red Bay and Howendale Resident Group v. Bruce (County) – 2011 - ON
 OMB held that Crown and/or MMAH and not the County was responsible to
Consult with Saugeen Ojibway Nation regarding proposed OP amendments and
potential affect of same on Aboriginal Rights claimed
Brantford (City) v. Montour – 2010 - ON
 Issue of City injunction request to allow development of private lands
 Court held in awarding injunction that City was not responsible to Consult
beyond statutory consultation due or for compensation for inadequate
consultation or delegation of Provincial jurisdiction over Municipal lands in
question
John Voortman & Associates Ltd. v. Haudenosaunee Confederacy Chief Council –
2009 - ON
 Issue of private owner seeking injunction to continue development of private
lands under subdivision approval
 Court held that any Duty to Consult re: subdivision approval belongs to the
Crown and Municipal statutory consultation not substitute for this Duty
CURRENT MUNICIPAL CASES

Musqueam Indian Band v. Richmond (City) – 2005 – BC

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Paul First Nation v. Parkland (County) – 2006 – AB

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Issue of Municipal approval for location of Provincial gaming facility
Court held that Municipal statutory consultation obligation met but that
Municipality not the Crown and no jurisdiction for Duty to Consult
Issue of Municipal approval of a gravel pit
Court held Duty to Consult applies only to development of publicly held lands
Adams Lake Indian Band v. British Columbia – 2011 – BC


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Issue of incorporation of new Municipality and affect on Aboriginal Rights
Court held Province responsible to Consult on delegation of jurisdiction to the
new Municipality and that a condition in the Letters Patent that the
Municipality consult was inadequate to meet the Crown Duty to Consult and
Accommodate
See also Gardner v. Williams Lake (City) – 2006 – BC
MUNICIPALITIES CON’T

Crown compensation for illegal surrender of Municipal private
or public lands or unreasonable use infringement by
occupation or incompatible use resulting from the exercise of
Municipal jurisdiction

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
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Chippewas of Sarnia Band v. Canada (A.G.)
Mikisew v. Cree First Nation v. Canada (Minister of Canadian
Heritage)
Duty to Consult and Accommodate lies upstream of all
Municipal legislation and directives to Municipalities
Remedy Tail Does Not Wag the Liability Dog
Court responsibility to adjudicate if Crown fails to fulfill its
Duty and Honour in actions or delegation of jurisdiction over
lands to Municipalities
CORPORATIONS



No independent Duty to Consult or Accommodate
Aboriginal communities
 Haida v. British Columbia (Minster of Forests);
Rio Tinto-Alcan v. Carrier Sekani Tribal Council
But …
 Broad natural person powers for use of resources
 For profit entities
 Expediency
Wahgoshig v. Her Majesty the Queen in Right of
Ontario – 2011 - ON
WE ARE ALL IN THIS
TOGETHER


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Build Relationships with your First Nation and Aboriginal
community neighbours
Work together to ensure the Crown is at the table on day one
of any project development or legislative or policy initiative in
which you have an interest
Support the Crown-Aboriginal consultation and
accommodation process with use of your community facilities,
historical, community and geological knowledge, and personal
relationships with your Aboriginal community neighbours
Reject insufficient delegation initiatives at the outset to ensure
certainty, timeliness and satisfaction of the Consultation
process and any ultimate Accommodation due from the Crown
To the Courts as a Last Resort!
THANK YOU!
CHANTELLE J. BRYSON
B.A., LL.B., Juris Doctor
Tel: (807) 623-2500
Fax: (807) 622-7808
cbryson@buset-partners.com