Aboriginal Law

By: Kerry Wilkins

IV.3.(a)–(f): Obligations to Aboriginal Peoples: Honour of the Crown — The Duty to Consult

 

Click here for access to this CED title and its related Canadian Abridgment links on Westlaw Canada

 

 

 

IV.1.(a): The Duty to Consult|General

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

We have known for some time that the federal Crown's fiduciary relationship with First Nations can sometimes result in enforceable obligations to consult before exercising its discretionary control over First Nations' independent legal interests.¹  We have long known, as well, that it will be difficult, if not impossible, for the Crown to justify particular infringements of existing treaty or aboriginal rights unless it can demonstrate that it has consulted sufficiently with the aboriginal community whose rights it has infringed.²

 

We now know, in addition, that the federal and provincial Crowns sometimes each have enforceable obligations to consult with certain aboriginal communities even in circumstances in which the Crown is not known to have fiduciary obligations to those communities³ and those communities are not known to have existing treaty or aboriginal rights.⁴  In some circumstances, the Crown has an obligation to consult with an aboriginal community about treaty or aboriginal rights the community may have, but whose existence it has not yet established.⁵

 

This obligation "is a constitutional duty, the fulfillment of which is consistent with the honour of the Crown".⁶

 

IV.3.(b): The Duty to Consult| Source and Anchorage of the Duty

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

"The principle of the honour of the Crown grounds the Crown's duty to consult and if indicated accommodate aboriginal peoples, even prior to proof of asserted aboriginal rights and title. The duty of honour derives from the Crown's assertion of sovereignty in the face of prior aboriginal occupation. It has been enshrined in section 35(1) of the Constitution Act, 1982,¹ which recognizes and affirms existing aboriginal rights and titles".²

 

The duty to consult "derives from the need to protect aboriginal interests while land and resource claims are ongoing or when the proposed action may impinge on an aboriginal right."³ It "is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by section 35(1) of the Constitution Act, 1982. The process of reconciliation flows from the Crown's duty of honourable dealing toward aboriginal peoples, which in turn arises from the Crown's assertion of sovereignty over an aboriginal people and de facto control of land and resources that were formerly in the control of that people".⁴

 

IV.3.(c).(i): The Duty to Consult | When the Duty Arises| General

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

In respect of aboriginal rights, the Crown's duty to consult arises "when the Crown has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates conduct that might adversely affect it."¹ "The threshold, informed by the need to maintain the honour of the Crown, is not high."²  In circumstances that meet these conditions, it need make no difference that the lands to which the proposed Crown conduct pertains are private lands.³

 

Essentially the same test applies when a treaty | historical⁴ or modern⁵ | with aboriginal peoples protects, or is alleged to protect, the relevant right, unless the treaty itself prescribes an alternative arrangement that is consistent with the honour of the Crown.⁶ By way of example, the Crown has a duty to consult with a signatory aboriginal community when it proposes to exercise its power under a historical treaty to "take up" lands within that community's traditional territory;⁷ it proposes to dispose of Crown lands in an area subject to harvesting rights under a modern treaty at the expense of that community's harvesting rights;⁸ or the results of an approval process prescribed under a modern treaty "may adversely affect" any rights set out in that treaty.⁹  The federal courts¹⁰  and courts in British Columbia,¹¹ Alberta,¹² and Ontario¹³ have held consistently that treaty rights give rise to consultation obligations. It is now fairly common, in the federal¹⁴ and British Columbia courts¹⁵  especially, for the Crown to concede the point.

 

IV.3.(c).(ii): The Duty to Consult| When the Duty Arises| Knowledge of a Right's Potential Existence

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

"The claim or right must be one which actually exists and stands to be affected by the proposed government action."¹

 

"In the case of a treaty, the Crown, as a party, will always have knowledge of its contents. The question in each case will therefore be to determine the degree to which conduct contemplated by the Crown would adversely affect those rights so as to trigger the duty to consult."²

 

In respect of aboriginal rights assertions, "actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations,  . . .  Constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an aboriginal community or an impact on rights may reasonably be anticipated."³

 

"While the existence of a potential claim is essential, proof that the claim will succeed is not. What is required is a credible claim."⁴ Crown "knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate," even if the claim is "dubious or peripheral."⁵ "To facilitate this determination, claimants should outline their claims with clarity, focusing on the scope and nature of the aboriginal rights they assert and on the alleged infringements."⁶

 

A government's acceptance for negotiation of a claim of aboriginal right is sufficient indication that that government both has knowledge of the claim and considers it to have enough credibility to give rise to enforceable consultation obligations.⁷

 

In many cases, however, consultation issues arise in situations where the Crown has not accepted an aboriginal claim for negotiation or otherwise acknowledged its prima facie merit. The Supreme Court of Canada's definition of "constructive knowledge" | "when lands are known or reasonably suspected to have been traditionally occupied by an aboriginal community or an impact on rights may reasonably be anticipated"⁸| can be read to suggest that the Crown has an affirmative obligation to be attentive to, and to consult in, situations where there are reasonable grounds on which a credible claim of aboriginal right could be made, even if the relevant community has not yet made such a claim. Previous lower courts in several jurisdictions had held, on the other hand, that the claimant community bears some onus to establish, in cases where the Crown has not yet accepted its claim for negotiation, that it has a credible claim of aboriginal right of which the Crown has knowledge. For example, courts in Ontario have held that "there is no authority for the proposition that an interest that does not go as far [as necessary to qualify as an aboriginal right] is sufficient to trigger the duty" to consult.⁹ An interest based exclusively on a provision of the Indian Act,¹⁰ for instance, will not suffice;¹¹ the Ontario Court of Appeal has held,¹² and the Alberta Court of Appeal has intimated,¹³ that no duty to consult arises from claims of aboriginal right that are not legally cognizable as such; the Ontario Divisional Court has held that a claim of aboriginal right cannot be credible today for purposes of consultation law if the Supreme Court of Canada has concluded that the First Nation asserting the right has surrendered it absolutely in a treaty;¹⁴ the Saskatchewan Court of Queen's Bench has held that "an asserted aboriginal right is not based upon vague assertions of interest or historical connection to the area";¹⁵ the Federal Court of Appeal¹⁶  and the Federal Court¹⁷ have each held that a duty to consult depends upon the presence of evidence that the claimant community's claim of right is credible and that it credibly includes the activity that the Crown's proposed conduct is said to affect adversely; the Federal Court of Appeal,¹⁸ the Ontario Court of Appeal¹⁹  and the Saskatchewan Court of Queen's Bench²⁰  have all held that that the Crown has no duty to consult in a particular instance unless it had been made aware of a credible claim of right at a time sufficiently early in its decision process to allow for meaningful consultation; and the Newfoundland and Labrador Court of Appeal has held that all the Crown requires to trigger its consultation duties is "'some idea' of the potential scope and nature of the aboriginal right asserted and of the alleged infringements of those rights." All a claimant community has to do for this purpose is "set out  . . .  the essential facts underlying and supporting its claim to aboriginal rights and the facts supporting its submission that the Crown's actions could adversely affect those aboriginal rights."²¹

 

IV.3.(c).(iii): The Duty to Consult| When the Duty Arises| Crown Conduct

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

A government action or decision can give rise to consultation duties whether or not it is in exercise of a statutory power and whether or not it will have "an immediate impact on lands and resources"¹  or, presumably, on other interests susceptible to recognition as aboriginal rights. Crown conduct can give rise to a duty to consult even in circumstances where the law affords the Crown no discretion in deciding how or whether to proceed.²

 

The proposed acts and decisions of Crown corporations | entities that "act in place of the Crown" | qualify as Crown conduct for purposes of the law on Crown duties to consult.³

 

IV.3.(c).(iv): The Duty to Consult| When the Duty Arises| "Might Adversely Affect"

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

The Supreme Court of Canada has said consistently that the Crown must consult a given aboriginal community if it contemplates conduct that "might adversely affect" a treaty or aboriginal right that, to the Crown's knowledge, that aboriginal community has or credibly asserts.¹ It has acknowledged that this standard "sets a low threshold": that the "flexibility lies not in the trigger ('might adversely affect it') but in the variable content of the duty once triggered."² Two issues arise in respect of this standard: the degree of likelihood of adverse effect required to attract consultation duties to a given Crown action or decision; and the degree of severity required of a possible impact for it to quality as "adverse" and to trigger consultation duties.

 

With respect to the degree of likelihood, despite some lower court decisions that had held that no enforceable consultation duties arise unless the proposed Crown conduct would or would be likely to infringe, interfere with or violate an actual or asserted right,³ the Supreme Court of Canada has affirmed that "a potential for adverse effect suffices"⁴ to generate such obligations. Even strategic high-level management decisions or structural changes to a resource's management, which have "no immediate impact" on the relevant lands or resources, can themselves generate consultation obligations,⁵ because they "may set the stage for further decisions that will have a direct adverse impact on land and resources. For example, a contract that transfers power over a resource from the Crown to a private party may remove or reduce the Crown's power to ensure that the resource is developed in a way that respects aboriginal interests in accordance with the honour of the Crown."⁶

 

On the other hand, with respect to degree of severity, no Crown consultation duties arise in respect of particular acts or decisions unless they create a risk of "an 'appreciable adverse effect on the First Nations' ability to exercise their aboriginal right'";⁷ "mere speculative impacts  . . .  will not suffice."⁸ (By way of example, no duty to consult arises in respect of a decision to approve a shopping centre if the only possible adverse impact on aboriginal interests relates, not from the proposed development itself, to the possibility that the government will subsequently impose more stringent flood control measures as a result of the development.)⁹ The test for consultation obligations "does not mean," for example, "that whenever a government proposes to do anything in the Treaty 8 surrendered lands it must consult with all signatory First Nations, no matter how remote or unsubstantial the impact. The duty to consult is  . . .  triggered at a low threshold, but adverse impact is a matter of degree, as is the extent of the Crown's duty."¹⁰ For purposes of consultation law, "adverse impact" on a given treaty or aboriginal right appears to mean prima facie infringement of that right.¹¹ A "prima facie infringement requires a 'meaningful diminution' of a treaty right. This includes anything but an insignificant interference with that right."¹² But the impact on a First Nation's harvesting right protected by modern treaty of a proposed Crown land grant was held to be sufficiently adverse to generate consultation obligations despite the fact that it would affect only 0.33 per cent of the relevant treaty-protected trapline and harvesting area.¹³

 

In addition, the "adverse effect must be on the future exercise of the right itself;" "past wrongs, including previous breaches of the duty to consult, do not suffice" to generate fresh Crown consultation obligations.¹⁴ Neither does "an underlying or continuing breach" of an established or asserted treaty or aboriginal right or "an adverse effect on a First Nation's future negotiating position."¹⁵ The question is what adverse impact, if any, might result from "the current government conduct or decision in question."¹⁶

 

"The impact of the infringement" that may result from conduct the Crown is contemplating in a given instance is a question of law about which the Crown would likely be held to a standard of correctness.¹⁷ This means that the Crown is "under an obligation to inform itself of the impact its project will have on the exercise" of the rights an aboriginal community holds or asserts "and to communicate its findings to" the community affected.¹⁸ Even when the Crown's consultation obligations lie "at the lower end of the spectrum,"¹⁹ include "the provision of information about  . . .  what the Crown anticipated might be the potential adverse impact" of its project upon the rights of the affected aboriginal community.²⁰ "The contemplated adverse effect need not be obvious" to generate an enforceable Crown consultation obligation.²¹ The threshold of impact giving rise to Crown consultation obligations "is obviously low because, until a First Nation is informed of the proposed action, it is unable to provide input as to the extent of any impact the proposed action may have" on the rights it holds or asserts.²²  In the context of litigation, however, "the claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending aboriginal claims or rights" in seeking to prove an enforceable Crown consultation obligation.²³ To do so, the federal courts have said, the claimant community must adduce some evidence, "more than mere submissions or generalities,"²⁴ that the Crown conduct at issue "might adversely affect" the rights the claimant community holds or asserts.²⁵

 

Much of the lower court jurisprudence on "might adversely affect" is consistent with the Supreme Court's direction on this issue. By way of example: proposals to renew, replace or transfer an existing tree farm licence,²⁶  to remove private lands from the boundaries of an existing tree farm licence,²⁷ or to approve of a change in control of the company holding an existing tree farm licence²⁸ or to issue new tree farm licences²⁹ all give rise to enforceable consultation obligations, if the licences at issue pertain to lands that are subject to a claim of aboriginal title; renewal of an existing licence, "even if it is similar to the one it is replacing, is certainly sufficient to meet the third requirement ['might adversely affect'] underlying the duty to consult";³⁰  a change in regulatory control over a resource from the provincial to the federal order of government (or vice versa) as a result of a judicial decision invalidating the previous regime triggers a duty to consult in respect of implementation of the new regime;³¹  a proposal to reassign to a casino development an existing but moribund Crown lease of lands that are subject to a claim of aboriginal title gives rise to consultation obligations, even though the duration of the lease remains the same;³²  decisions about design of the regulatory process developed to consider the approvals necessary to permit construction of the Mackenzie Gas Pipeline themselves had the capacity to affect adversely the harvesting rights, held or asserted, of First Nations through whose harvesting territories the pipeline was proposed to pass;³³ entering into a treaty with one First Nation in respect of lands that are subject to overlapping claims from other First Nations gives rise to a duty to consult those other First Nations.³⁴ Courts have held in some circumstances that some such consultation must precede conclusion of an agreement in principle with the target First Nation, ³⁵ and in other circumstances that it need not;³⁶ a Crown decision to preserve the status quo can sometimes give rise to enforceable consultation obligations;³⁷  there is, at a minimum, reason to doubt that the Crown has a duty to consult before issuing leases granting subsurface rights to lands a First Nation has surrendered under treaty, even if the First Nation retains some harvesting rights on or over that land;³⁸ there is no potential for adverse impact, and therefore no Crown duty to consult, in respect of decisions about a pipeline project that is to be built over existing rights of way and on private land not now and not likely in the future to be available for land claim settlement;³⁹  because "the Crown exercises no discretion in its administration of tax exemption rights," no duty to consult arises in respect of the Crown decisions in respect of the scope of such rights.⁴¹

 

IV.3.(d): The Duty to Consult| When the Duty Does not Arise

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

Although "the duty to consult is derived from the honour of the Crown which applies independently of the expressed or implied intention of the parties" to a historical or contemporary treaty, "it plays a supporting role, and should not be viewed independently from its purpose." Put differently, "the honour of the Crown may not always require consultation." The parties to a contemporary treaty "themselves may decide therein to exclude consultation altogether in defined situations and the decision to do so would be upheld by the courts where this outcome would be consistent with the maintenance of the honour of the Crown."¹

 

The Federal Court of Appeal has twice concluded that the Crown's exercise of its prosecutorial discretion does not give rise to enforceable obligations to consult with aboriginal communities having or asserting aboriginal or treaty rights that decisions about prosecution might adversely affect.² The Alberta³ and British Columbia⁴  courts, however, have entertained on their merits challenges to prosecutions on consultation grounds, and the Alberta Court of Queen's Bench has held explicitly that the Crown "has a duty to take action toward addressing the problem" "where it contemplates state conduct | such as charges and prosecutions in relation to the licensing requirements of the [relevant] Act | that might adversely affect" aboriginal rights that to its knowledge have been asserted.⁵

 

IV.3.(e): The Duty to Consult| Who Owes the Duty

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

The Crown owes the duty to consult and, as appropriate, accommodate relevant aboriginal communities because the duty "flows from the Crown's assumption of sovereignty over lands and resources formerly held by the relevant aboriginal group."¹ "The honour of the Crown requires that it act as a committed participant in the undoubtedly complex process of consultation and reconciliation" when conflict arises between asserted aboriginal rights and the otherwise legitimate interests of industry.²

 

The Crown in right of the provinces, as well as the Crown in right of Canada, is subject to the duty to consult and accommodate aboriginal communities in circumstances where the duty otherwise arises.³ This is so because the provinces took their proprietary interest in the lands within their boundaries "subject to any interest other than that of the province in" those lands⁴ and the Crown's assertion of sovereignty, from which the duty to consult and accommodate derives,⁵ predated Confederation.⁶

 

Because "BC Hydro is a Crown corporation," which "acts in place of the Crown," its conduct | and by implication, that of any other entity that "acts in place of the Crown" | is capable of attracting enforceable consultation obligations. When it does, the honour of the Crown may well require the Crown corporation itself to take the necessary steps to fulfill the duty.⁷

 

The Supreme Court of Canada has expressly "left open for another day the question of whether government conduct includes legislative action": whether, in other words, legislative action is subject to the duty to consult.⁸ Earlier jurisprudence, however, strongly suggests that this obligation governs only the executive, not the legislative, branch of government. It is well-established in general law that the process of enacting legislation is immune from judicial review, except in respect of "manner and form" requirements that a legislative body chooses to impose upon its own process.⁹  Even unwritten but judicially recognized constitutional principles govern only government action and the interpretation of legislation, not the conduct of legislative business.¹⁰ The Alberta Court of Appeal has held that there can "be no duty to consult prior to the passage of legislation, even where aboriginal rights will be affected," because it "would be an unwarranted interference with the proper functioning of the House of Commons and the Provincial Legislatures to require that they engage in any particular processes prior to the passage of legislation."¹¹  In a later decision, however, that same court observed that "even if the Legislature itself does not have a duty to consult prior to passing legislation, the duty may still fall upon those assigned the task of developing the policy behind the legislation, or upon those who are charged with making recommendations concerning future policies and actions."¹²  The British Columbia courts have held that provincial orders-in-council can give rise to enforceable consultation obligations.¹³  And the Yukon Territory Court of Appeal has held that "statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate aboriginal claims are defective and cannot be allowed to subsist."¹⁴

 

"The legislature may choose to delegate to a tribunal the Crown's duty to consult." But a "tribunal has only those powers that are expressly or implicitly conferred on it by statute. In order for a tribunal to have the power to enter into interim resource consultations with a First Nation, pending the final settlement of claims, the tribunal must be expressly or impliedly authorized to do so. The power to engage in consultation itself, as distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere power to consider questions of law.  . . .  The tribunal seeking to engage in consultation itself must therefore possess remedial powers necessary to do what it is asked to do in connection with the consultation."¹⁵ This appears to support the view expressed in some lower court decisions that adjudicative tribunals do not routinely have a duty to conduct consultations with aboriginal communities about matters before them for review or approval, even when the review or approval sought might adversely affect an established treaty or asserted aboriginal right.¹⁶

 

On several occasions in different Canadian jurisdictions, aboriginal parties have sought to enforce consultation obligations against municipal entities.¹⁷ Only in British Columbia, however, have the courts ruled on whether municipalities are subject to such duties. The British Columbia Court of Appeal has held that municipalities do not have constitutional obligations to consult, because municipalities are not the Crown and do not have either the statutory remedial powers¹⁸ or the practical resources or capacity to respond to the kinds of concerns that arise from consultations with aboriginal communities.¹⁹ The Superior Court of Ontario, by contrast, has so far left the question open.²⁰

 

Independent third parties | private proponents seeking government approval of projects that, if approved, might adversely affect the relevant rights, for instance | have no free-standing obligation, akin to that of the Crown, to consult with affected aboriginal groups.²¹ (They may have obligations under particular legislation to consult with aboriginal peoples, or others, if they wish certain statutory approvals.)²² The Crown may delegate "procedural aspects of consultation" to private proponents, but "the ultimate responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated."²³ This means, among other things, that the Crown must make clear to the delegate and the relevant aboriginal communities that it is delegating its responsibilities to consult with that community and the nature of the delegate's role as delegate in its dealings with the community,²⁴ and that the Crown is not entitled to rely on a delegate's reports that the delegate has completed consultations with a relevant aboriginal community. It must satisfy itself that the consultations undertaken on its behalf suffice in the circumstances to discharge its obligations.²⁵ These conclusions do not absolve private third parties from civil liability to aboriginal peoples in other circumstances where there are appropriate legal grounds for liability.²⁶ But they do mean that a First Nation has no remedy against a party other than the Crown for a breach of the Crown's obligation to consult.²⁷

 

IV.3.(f): The Duty to Consult| To Whom the Duty is Owed

 

See Canadian Abridgment: ABL.I.10.a Aboriginal law | Constitutional issues | Land claims agreements | Duty of Crown to negotiate; ABL.I.11 Aboriginal law | Constitutional issues | Fiduciary duty of Crown

 

To date, the Supreme Court of Canada has acknowledged and enforced consultation obligations in advance of infringement only in respect of asserted aboriginal rights¹  and established treaty rights.² Several lower court decisions have followed and applied this conclusion in respect of asserted aboriginal rights³ and established treaty rights,⁴ but no superior or appellate court has yet held that such obligations arise in respect of potential infringements of established aboriginal rights.

 

When the potential for adverse impact from proposed Crown conduct on harvesting rights guaranteed by treaty pertains exclusively to a particular location within the treaty area the Crown need not consult with all First Nations that are signatory to the treaty, but only with those whose traditional harvesting territories the proposed Crown conduct will affect.⁵

 

When faced with a diversity of views from different entities each purporting to represent a given First Nation, "the government must discharge its duty to consult by taking reasonable steps to ensure that all points of view within a First Nation are given appropriate consideration."⁶

 

Alberta courts have taken opposing positions on whether the Crown has a duty to consult Métis communities in circumstances that would otherwise give rise to such a duty.⁷  Decisions of the Saskatchewan Court of Queen's Bench⁸ and the Newfoundland and Labrador Court of Appeal⁹ appear to proceed on the assumption that the honour of the Crown does require the Crown to consult with Métis communities.

 

It is permissible for a corporate entity to be the vehicle for enforcement of the Crown's duty to consult particular aboriginal communities, if it can establish to the court's satisfaction that it has the authority of the communities it purports to represent.¹⁰ But non-aboriginal entities, including municipalities with substantial aboriginal populations, do not have standing to raise concerns about Crown consultation obligations unless, at a minimum, they can establish that they have authority to represent the relevant aboriginal interests.¹¹ And there is no duty to consult with groups that are "not well defined and whose authority to represent aboriginal people is not well established," especially when other entities are recognized as having authority to represent the relevant aboriginal community.¹²  An aboriginal group will not have standing to enforce the Crown's duty to consult unless its membership can be ascertained by objective criteria and otherwise meets the criteria for representing a class in a class proceeding.¹³

 

Because aboriginal and treaty rights are communal rights, the Crown's duty to consult does not extend to individual members of aboriginal communities who claim the benefit of the rights asserted or held.¹⁴ The entitlements of individuals are derivative benefits based on the collective interests of the First Nations of which they are members.¹⁵  "The proper applicant for a judicial review applicant in a consultation proceeding would be the rights-bearing community itself or an individual member of the community in a representative capacity on behalf of all other members of the community."¹⁶Individuals in their personal capacities have no standing to challenge Crown conduct on aboriginal consultation grounds, even as defendants in civil proceedings, unless they can demonstrate authorization to do so from the aboriginal community owed the duty to consult.¹⁷

Click here to download footnotes