Ontario’s Mining Act Amendments: Consultation — Whose Duty?

Previously in The Northern Miner, (T. N. M., May 25-31/09), I wrote about the aboriginal consultation provisions of Bill 173, the Mining Amendment Act, reminding the industry that although a quick read of the bill might lead one to think it is industry that is obliged to consult, as the Supreme Court has made clear, the obligation is the Crown’s.

The question of who is responsible for consultation under the amended act requires closer examination. Though not entirely clear, the bill (which has been referred to the Standing Committee on General Government, to hold hearings on it in various places Aug. 6-13) seems to demand consultation by a proponent far beyond the requirements of the case law, which places this duty squarely on the Crown.

In practice, as I understand it, consultation in Ontario is almost entirely conducted by the proponent. It is the proponent that has the incentive to achieve a result, and the interest in the outcome. There is no doubt that relationship building from the outset is essential; this approach by mining companies and other development proponents is the right one and is to be encouraged. But to satisfy the case law, government has to be fully involved. Only then can the proponent be reasonably sure that things won’t come unstuck later by a claim of improper or inadequate Crown consultation. The bill is at best ambiguous, and arguably contradictory, on this question.

The Supreme Court of Canada is very clear on who owes the duty to consult. In Haida Nation vs. B. C. in 2004, the court stated: “The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties that affect aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development. . . However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated.”

The bill is grounded in this case law. The proposed amended “purpose” of the Mining Act, by requiring that mineral resources be developed consistently with section 35 of the Constitution Act, 1982, including the duty to consult, imports the common law duty of Haida into the act.

That the bill intends to codify the Supreme Court case law is confirmed when we see that regulations are to be authorized “requiring consultation with aboriginal communities in the prescribed circumstances and governing all aspects of aboriginal consultation under this act, including (how consultation) is to be conducted and providing for the delegation of certain procedural aspects of the consultation.” The latter phrase tracks Haida, implicitly limiting delegated consultation to “certain procedural aspects.” Reading these provisions, one would think Ontario accepts its responsibility for aboriginal consultation (though the bill carefully avoids saying who is to do the non-delegated consultation).

Yet on the critical subject of exploration plans and permits, it can only be said that Bill 173 purports to do what the Supreme Court says is impermissible, namely transfer the consultation duty from Crown to proponent. No “prescribed” activity may be carried out on a claim, lease or licence of occupation without an exploration plan that accords with requirements, “including any aboriginal community consultation that may be prescribed” (no “procedural aspects” limitation here).

Related provisions require an exploration permit in order to carry out a prescribed activity. This is to be issued by the new office of director of exploration, who is to consider, among other matters, “whether aboriginal consultation has occurred in accordance with any prescribed requirements.”

Advanced exploration and mine production may only begin if “aboriginal consultation has been conducted in accordance with the regulations,” and the director is to consider whether “appropriate consultation has been carried out.”

Notably, all these clauses are passive; they do not expressly fix responsibility on anyone. But it is difficult to avoid the inference that it is the applicant who is to bear the burden. Neither a limit on what may be asked of the applicant nor a concurrent duty on the Crown is mentioned in the bill; it compels proponent consultation without acknowledging the related and primary Crown duty.

One may ask, what does it matter who consults so long as the consultation is done to the satisfaction of the two parties most affected, the proponent and the First Nation? After all, it is the proponent who stands to reap the benefit; why shouldn’t the proponent be the one to incur the necessary effort? The bill will effectively force relationship building between the parties, who can expect to have a long-term relationship — a good thing. It will also transfer the costs from the taxpayer to the beneficiary — another good thing, at least for the taxpayer.

But there are other, sadly, less positive scenarios. If, for example, a proponent and a First Nation could not reach an agreement after significant consultation efforts, it would likely not be open to the proponent to ask a court to find that consultation had been adequate, since without Crown involvement there would have been no consultation at all within the meaning given that term by the Supreme Court. Similarly, if an impact benefit agreement were reached, there is some risk that a new band council with different views could seek to set it aside at the implementation stage, on the ground that, despite proponent-First Nation agreement, the requisite Crown consultation had not taken place. These issues could well arise unless the Crown is fully involved in, not just the approval of the consultation, but its conduct. The bill may therefore create significant lack of certainty for the proponent.

To be sure, I have read “prescribed” consultation as meaning “delegated,” but it is difficult to read the bill otherwise in the absence of any acknowledgement of a Crown role. To put the best complexion on it, it may be that the bill conflates two separate intentions, both laudable: One, to encourage relationship building by industry; the other, to recognize that delegation of Crown consultation is limited. The difficulty arises when the term “consultation” is applied to both, and no Crown role is acknowledged. Relationship building is absolutely to be encouraged (leaving aside whether coerced relationship building is as valuable as voluntary), but it is not a substitute for Crown consultation. It is not good enough for the Crown to say “Trust us; we’ll do our duty without any statutory coercion,” when the bill is all about third-party coercion.

These concerns would be fully addressed were the bill to contain two further provisions: first, that any aboriginal community consultation that may be prescribed shall be limited to procedural aspects as defined in the regulations; and second, that the minister (or delegated official) shall be responsible for the conduct of consultation that has not been delegated to an applicant.

This would answer to the case law. If this were thought to limit the capacity of the act to require relationship building by an applicant/ proponent, a term other than “consultation” could be chosen to require an applicant to establish a relationship with an aboriginal community concurrently with Crown consultation. “Consultation” would then mean what the Supreme Court has said it does, clarity would be restored, and a degree of certainty would not be far behind.

— The author is an Ottawa lawyer with an interest in constitutional, resource and energy issues. He is a member of the Ontario and British Columbia bars, and may be reached at jedmond@bell.net.