Indigenous law is a rapidly evolving field. In our first two instalments of this four-part series, we discussed updates relating to Aboriginal rights and title.
This instalment will discuss the duty to consult, treaty rights and new legislation. In our next and final entry in the series, we will look to the year ahead in 2025.
The duty to consult
The duty to consult flows from the honour of the Crown, an unwritten constitutional principle that requires the government to deal honourably with Indigenous Peoples. The duty to consult arises when the Crown has knowledge ' real or constructive ' of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it. The extent of the required consultation depends on the severity of the impact on the rights at stake.1 Canadian courts made several important rulings on the nature and extent of the duty to consult in 2024.
Association of Iroquois and Allied Indians v. Ontario
The applicants in Association of Iroquois and Allied Indians v. Ontario2 challenged two actions taken by the Ontario government: the revocation of MNR-75, Environmental Assessment Requirements for Forest Management on Crown Lands in Ontario, and the amendments to the Environmental Assessment Act made by Bill 197, which created certain exemptions from otherwise applicable environmental assessment procedures.
The Ontario Court of Appeal held that the duty to consult was not triggered in either case. With respect to Bill 197, the Court held that the duty to consult does not apply to the law-making process. If legislation adversely impacts Aboriginal interests protected under section 35 of the Constitution Act, 1982, then the proper avenue for redress is a constitutional challenge to the legislation.
As for MNR-75, the Court found that the applicants had not proven that Aboriginal rights would be impacted by the repeal of MNR-75, because its environmental protections were already incorporated into the legally binding Forest Management Planning Manual [PDF]. The Court's decision confirms that the duty to consult will not arise when new legislation is passed or when regulatory amendments do not lead to new impacts on Aboriginal rights.
Metis Settlements General Council v. Canada (Crown-Indigenous Relations) and Innu Nation Inc. v. Canada (Crown-Indigenous Relations)
In both of these cases, the Minister of Crown-Indigenous Relations entered into agreements with groups claiming to represent Indigenous...
