Obligation de consulter : que faire pour inclure les municipalités dans le processus? (article en anglais)

To date, municipalities have largely escaped a common law duty to consult. Jurisprudence from a decade ago attached the duty to the provincial Crown directly, finding that, among other things, municipalities lacked both the resources and legislative authority necessary to discharge the duty to consult.^[1]

Courts are increasingly scrutinizing the conduct of agents, including administrative regulatory tribunals, acting on behalf of the Crown. Since municipalities are creatures of provincial statutes, one might argue that they are sui generis agents of the provincial Crown. While municipalities do not currently fall within the scope of the common law duty to consult, their roles and responsibilities in carrying out Crown conduct are continually expanding. Given their ever-growing nature, it would be timely and helpful for municipalities and Indigenous groups alike for the Supreme Court of Canada ("SCC") to examine this issue directly.

When does a duty to consult arise?

The duty to consult and accommodate arises when the Crown contemplates conduct that could have an adverse impact on a real or potential Aboriginal right or title. The duty requires consultation with the relevant Indigenous group(s) and reasonably taking into account their interests.

As set out by the SCC in Haida Nation v British Columbia (Minister of Forests), the duty to consult is triggered when all three of the following elements are present:

1. contemplated Crown (or Crown agent) conduct;
2. in an area with potential or established Treaty or Aboriginal [Indigenous] rights;
3. that has a potential adverse impact on such Treaty or Aboriginal [Indigenous] rights.^[2]

This article focuses on the first element – contemplated Crown (or Crown agent) conduct.

The scope of the Crown's conduct

Conduct required to satisfy the first element of the Haida test can be exercised by the Crown itself, or through its agents, such as Crown corporations and regulatory agents.

Jurisprudence demonstrates that Crown agents are bound by the duty to consult. In 2016, the Court of Appeal for Ontario stated in 2403177 Ontario Inc v Bending Lake Iron Group Limited that "[t]here is no question that the Crown (or a Crown agent) has a duty to consult with 'affected Aboriginal communities' where the Crown's actions might adversely impact potential or established Aboriginal or treaty rights".^[3] Moreover, in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council the SCC accepted that BC Hydro, a provincial Crown agency, "acts in the place of the Crown" and was therefore subject to the duty to consult.^[4]

More recently, in 2017, the SCC decision in Clyde River (Hamlet) v Petroleum Geo-Services Inc^[5] affirmed that the duty to consult applies to Crown agents. The duty to consult will apply regardless of whether the Crown or an agent of the Crown holds the final decision-making authority.^[6] Indeed, the National Energy Board ("NEB"), an independent regulatory board charged with making final decisions regarding project applications on behalf of the government, was held to have a duty to consult. Karakatsanis and Brown JJ wrote that the NEB is "the vehicle through which the Crown acts" and therefore was considered "Crown conduct" that constitutes "Crown action that may trigger the duty to consult."^[7]

Where do municipalities fit into the duty to consult?

Even though Crown agents are bound by the duty to consult, municipalities have so far escaped such a duty. There is limited jurisprudence on the specific relationship between municipalities and the duty to consult. However, where courts have weighed in, they have generally excluded municipalities from owing such an obligation.

In John Voortman & Associates Limited v Haudenosaunee Confederacy Chiefs Council, the Ontario Superior Court led an inquiry on where in the spectrum a municipality's duty to consult lay, but failed to consider the critical question of whether that duty existed in the first place. That case concerned a municipality's approval process of a development project that had a potential adverse impact on land over which certain Haudenosaunee groups claimed rights. The Court made an assumption that a duty to consult was owed but offered no clarity on how or why the duty extended to a municipality.^[8]

Conversely, in 2012, the BC Supreme Court held in Neskonlith Indian Band v Salmon Arm (City) that the City of Salmon Arm had no duty to consult the Neskonlith First Nation on a development project bordering the First Nation's reserve. The court held that the honour of the Crown rests with the provincial or federal government and in the absence of statutory authority, the City had no obligation to consult and accommodate. Reasons cited by the court included municipalities' lack of resources and remedial powers limiting efforts for effective consultation, and that imposing the duty would risk overburdening the efficiency of decision-making by local governments and needlessly interfere with "daily life."^[9] The same court later applied Neskonlith in Squamish Nation v British Columbia (Community, Sport and Cultural Development), noting that while the Province could delegate procedural aspects of consultation to third parties, municipalities alone cannot fulfill the Crown's duty.^[10]

The courts' approach to the issue is evolving as practical challenges to Neskonlith continue. In particular, challenges to the applicability of the duty to consult should be considered in the context of the ever-expanding roles and delegation of powers to municipalities. For example, municipalities have taken on increased roles in delivering governmental services. Looking no further than the recent pandemic response, local public health departments that are closely associated with municipalities were on the front lines – again acting in the capacity as "the vehicle through which the Crown acts."

The roles and responsibilities municipalities have in carrying out Crown responsibilities are continually expanding, yet they still do not fall within the scope of the common law duty to consult. From a practical perspective, it is difficult to see how municipalities can be wholly shielded from the duty to consult when they are stepping into roles that may have been traditionally undertaken or are being downloaded by the Crown, in particular the provincial Crown. Therefore, in carrying out the responsibilities of a province, downloaded to municipalities, the duty to consult may very well one day attach. 

Over time, courts will need to adjust their approach on the duty to consult to keep up with the ever-changing nature and growth of municipalities. It may well take a First Nation to lead that charge to push the matter all the way to the SCC, if needed. When that happens, a municipality's ability to escape the duty to consult may finally come to an end.