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An Overview of the Duty to Consult in Canada: From Haida to Frontenac

Neal Smitheman, Tracy A. Pratt, International Mining and Oil & Gas Law, Development and Investment (2009)

The Supreme Court of Canada set out the principles governing the duty to consult with First Nations in the leading decisions of Haida v. British Columbia (“Haida”);2 Taku River Tlingit First Nation v. British Columbia (“Taku”);3 and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) (“Mikisew”).4 These principles are as follows:

(1) Based on the “honour of the Crown”, the duty to consult with aboriginal peoples lies with the Crown, and not with third parties;

(2) The duty to consult is owed by the Crown both in cases of established and unestablished aboriginal treaty or rights claims;

(3) The duty to consult arises where there is knowledge of the potential existence of an aboriginal or treaty right and where the Crown contemplates conduct that may adversely impact such right;

(4) The exact extent of the duty will vary based on the facts of each situation and will be proportionate to the strength of the asserted aboriginal or treaty right and the degree of potential impact on it; and

(5) The duty to consult does not amount to an aboriginal “veto” power over development projects.

The Crown's failure to fulfill its duty to consult can lead to significant delays and complications for third parties engaged in resource development. In the recent Ontario cases of Platinex and Frontenac, the Court was called upon to