The duty to consult and to accommodate indigenous peoples can arise at any time in the aggregate licensing process. The failure to properly address the duty will not only cost time and money, but it will also damage relationships with indigenous communities, lead to a rejected licence application or the loss of an already-issued licence in circumstances in which the court finds that the duty has not been fulfilled (Saugeen First Nation v Ontario (MNRF), 2017 ONSC 3456).
Its source and scope
The duty to consult and to accommodate is part of the fundamental law of Canada, imposed by s.35 (l) the Constitution. It overrides federal as well as provincial law and affects private rights in the property, including land on which pits and quarries operate or on which they are intended to be operated.
The duty arises “when the Crown has the knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it.” The threshold is relatively low; a credible claim suffices.
Once triggered, the scope of the duty is on a spectrum and depends on the nature and strength of the rights in question and the seriousness of the potential impact on them. On the low end, the duty may include notice to the affected communities and information about the pit or quarry in question. At the higher end, the communities could be part of the decision-making process.
What it means
There is no duty to come to an agreement nor do indigenous communities have a veto. That said, the Crown must act honourably and consultation must be meaningful, not simply perfunctory.
Technically, the duty is not imposed on aggregate operators although, practically speaking, the Crown can delegate “procedural” aspects of it to others. In this respect, an operator may be required to deal directly with the relevant communities to notify them of the proposed project, provide them with information, fund some aspect of their participation in consultation, and modify the project to accommodate any concerns.
It is, however, the Crown, not the operator, which has the duty and must assess whether it has been fulfilled, subject, of course, to a constitutional review by a court, if challenged.
What happens if the consultation is insufficient? Everything can go wrong: a proposed project can be derailed, delayed, and, in some cases, effectively be stopped in its tracks. Dealing with it properly is, effectively, not only the right thing to do, but it is the cost of doing business.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”