The Evolving Duty to Consult Indigenous Peoples: N.S. Court Recognizes a “Duty of Enforcement Consultation” in R. v. Martin
June 29, 2018
By Harvey Morrison, QC, at McInnes Cooper
The Crown’s duty to consult Indigenous Peoples has evolved considerably since the Supreme Court of Canada’s first detailed articulation of it in its 2004 decision in Haida Nation v. British Columbia (Minister of Forests). And it continues to grow. In the June 13, 2018 case of R. v. Martin the Nova Scotia Supreme Court recognized a new duty of “enforcement consultation”: consultation by government with an Indigenous community before it takes steps to enforce the law. Although the recognition of a duty of enforcement consultation is unlikely to have a wide effect beyond those public bodies charged with the enforcement of regulatory laws, the decision is a significant reminder to all that the duty of consultation is a dynamic concept, the evolution of which continues:
- The Supreme Court of Canada’s 2017 decision in Ktunaxa Nation v. British Columbia offered a useful reminder that while the goal and the hope of the consultation process is to achieve agreement and reconciliation of Aboriginal and non-Aboriginal interests, the duty to consult and accommodate unproven Aboriginal claims is gives Aboriginal parties neither a guarantee of a particular outcome not a veto power over development.
- The Supreme Court of Canada’s 2017 decisions in companion cases Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. confirmed that the process and decision of an independent regulatory body, such as the National Energy Board (NEB, soon to become the Canadian Energy Regulator) can trigger the Crown’s constitutional duty to consult and can, in some circumstances, fulfill it in part or whole. But the processes and procedures necessary to discharge the duty to consult, and whether a body’s process is sufficient to do so, are highly circumstance- specific – and the duty is always ultimately the Crown’s to discharge.
- Next up: in January 2018, the Supreme Court of Canada heard the appeal of Canada v. Mikisew Cree First Nation, but has not yet issued its decision. The question before the Court is whether the Crown’s duty to consult affected Aboriginal Peoples applies before legislation is enacted (e.g., while developing and considering policy and legislative objectives, drafting bills and introducing them in the legislature). So far, the duty to consult applies only when the Crown is contemplating administrative action under enacted legislation that may adversely impact their Aboriginal or treaty rights, but not to any point in the legislative process.
The Context of This Case
The Department of Fisheries and Oceans (DFO) developed the Aboriginal Fishing Strategy (AFS) license in response to the Supreme Court of Canada’s 1990 decision in R. v. Sparrow where the Court recognized that an Aboriginal right to a food, social and ceremonial fishery is constitutionally protected by s.35 of the Canadian Constitution. However, according to the Sparrow decision, that right is not completely unfettered but is subject to limitations that met [meet] the test of justification. In 1993, DFO adopted a policy stating, at section 14, that “DFO personnel will consult with the relevant Aboriginal Fishing Authority before taking any enforcement action”. Beginning in 1994, the Waycobah community and DFO entered into a series of agreements under the AFS that regulated the community’s Aboriginal right to fish. Pursuant to the agreements, DFO issued Aboriginal Communal Fishing Licenses that set out catch allocations as well as stipulated the places, times and methods of fishing for members of the community. Under the 2007-2008 Agreement and License, salmon fishing was not permitted in Middle River.
The Charges in This Case
In October 2007, two members of the Waycobah community caught and retained two salmon from Middle River, Nova Scotia. They were (much) later charged with contravening the federal Aboriginal Communal Fishing Licenses Regulations. In the meantime, however, two DFO officials advised the appropriate community contact of the contraventions, but received no reply or objection. The accused admitted that they caught and retained the fish but defended the charges on the ground that they were exercising an Aboriginal right to fish.
The “Duty of Enforcement Consultation” in This Case
The Trial Judge decided the AFS was a justifiable limitation on the accuseds’ Aboriginal right to fish, but the Federal Government was obliged to consult the Aboriginal authority before taking enforcement action. As the Federal Government had not fulfilled this obligation to consult, the Trial Judge stayed the proceedings, meaning that no convictions could be entered against the accused. The Federal Government appealed the decision to the N.S. Supreme Court. The Supreme Court agreed with the Trial Judge that DFO owed a duty of enforcement consultation – but decided that in this case, it fulfilled that duty:
The law recognizes a “duty of enforcement consultation”. The law recognizes a duty of enforcement consultation independent of any agreement or government policy. But this particular duty of consultation is not automatically imposed whenever enforcement action is contemplated; the circumstances of each case will dictate whether a duty to consult prior to enforcement exists and what it entails.
A duty of enforcement consultation existed in the circumstances of this case. The 1993 Policy was not binding on the Federal Government nor was it incorporated into any agreement between DFO and the Aboriginal community. Nevertheless, a duty of enforcement consultation existed here:
- The AFS Agreements were entered into annually and were intended to bridge the gap to a permanent resolution of competing rights and interests in the fishery. This meant the “ongoing relationship between the Crown and [the Aboriginal community] was at stake throughout the term of each agreement with a view to future agreements”.
- The annual agreements instituted a “co-management regime which reflected a mutual interest in conservation and a prospective view of the broader relationship”.
- The 1993 Policy was a guideline for those responsible with the implementation of the entire AFS regulatory scheme. While not binding, the Policy was an “important statement of Crown intent” which represented a “DFO standard of compliance with its legal obligations”.
- The Agreements did not deal with enforcement and there were “uncertainties or misconceptions around the part of the Agreement” that the court said “exemplify” the “need for ongoing consultation”.
DFO fulfilled its duty in this case. Having found that the duty of enforcement consultation did exist, the court decided the “consultation required was minimal”. To fulfil it, it was incumbent on DFO to inform the appropriate officers of the community of the offence and invite feedback. As this was done, DFO discharged its duty of enforcement consultation. Consequently, the stay was set aside and convictions entered against the two accused.
Please contact your McInnes Cooper lawyer or any member of the Aboriginal Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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