1. MCCARTHY.CA Stuck in the Middle: Managing Litigation with First Nations Lisa Martz, McCarthy Tétrault LLP

2. MCCARTHY.CA Stuck in the Middle ¬it’s your project but the Crown’s legal duty ¬legal issues turn on whether Crown duty to consult with First Nations prior to issuing approval(s) for the project has been fulfilled ¬proponent is only a secondary party ¬proponent will have right to introduce evidence, make legal arguments, but approval often stands or falls based on Court’s assessment of what Crown has done

3. MCCARTHY.CA What Can a Proponent Do… ¬Keep a complete record of the process ¬Keep any eye on the record ¬Keep an eye on the Crown ¬Wear the White Hat ¬Assert its rights…

4. MCCARTHY.CA It’s About Process not Outcome ¬the key to fulfilling the duty to consult is: “a meaningful process of consultation… However, there is no duty to agree.” Haida Nation v. B.C. and Weyerhaeuser, 2004 SCC 73 [emphasis added] ¬means that every consultation opportunity provided is relevant ¬critical to keep complete records of all efforts to communicate with First Nations, even if unsuccessful, including ¬attempts to arrange meetings ¬unanswered e-mails, letters, telephone calls

5. MCCARTHY.CA Assume Everything is “On the Record” ¬all communications with First Nations can form part of the record before the Court in litigation ¬formal correspondence (letters) ¬informal communications (e-mails) ¬verbal discussions (notes/minutes can end up as evidence) ¬communications excluded from evidence only in certain circumstances

6. MCCARTHY.CA Preserving Confidentiality/Privilege ¬communications can be excluded from evidence based on: ¬settlement privilege ¬arises as a matter of law ¬made explicit by use of “without prejudice” ¬express confidentiality agreements ¬note that a proponent may want its offer of benefits to a First Nation to be before the Court ¬consider formalizing offer “on the record” even if discussions don’t result in agreement

7. MCCARTHY.CA Keep an Eye on the Crown ¬proponent’s approval stands or falls based on the sufficiency of the consultation process so a proponent may want to: ¬prompt the Crown to do more ¬escalate to more senior government officials if those on the front line aren’t doing a good job ¬ensure its own consultation activities can, if necessary, be seen to fulfill duty

8. MCCARTHY.CA Consultation by the Proponent: Does it Count? Yes and No ¬in Haida, SCC confirmed that it is the Crown that owes a constitutional duty to consult: “the duty to consult and accommodate, as discussed above, flows from the Crown’s assumption of sovereignty over lands and resources formerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests.” however the Court also held: “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.” [emphasis added]

9. MCCARTHY.CA Courts/Provinces Have Varying Views ¬some judges have considered and relied on the direct consultation between a proponent and the First Nations: “... a consideration of the question of consultation must be taken into account not only the aspects of direct consultation between First Nations people and the provincial government whose officials were charged with responsibility to decide upon these applications, but also the consultations between First Nations people and Amoco that were known to the government to have occurred.” Kelly Lake Cree Nation v. Canada (Minister of Energy and Mines), [1999] 3 C.N.L.R. 126, [1998] (BCSC)

10. MCCARTHY.CA Varying Views of Consultation by Proponent (cont.) ¬others have expressed concern about relying on the proponent’s consultation process: “ One danger of having different industry stakeholders involved in carrying out consultations is that it may become difficult for an Aboriginal community to identify when it is or is not engaged in discussions that amount to consultation for the purposes of the duty to consult. Various industry representatives may engage in discussions that might later be portrayed as part of a consultation process. This worry can be overcome by the government either carrying out all consultation itself or delegating its consultation roles quite explicitly where it does so.” Halalt First Nation v. B.C. (Environment), 2011 BCSC 945

11. MCCARTHY.CA Consultation by Proponents (cont.) ¬some think express legislative delegation by the Crown is required for proponent’s consultation to count: “If the Crown wishes to delegate operational aspects of its duty, it would appear that it must establish a legislative or regulatory scheme that recognizes, and incorporates within it, the duty to consult in such manner as effectively requires a third party either to discharge the duty to consult as a condition of receipt or maintenance of a right or interest or to acknowledge that the Crown’s discharge of such duty is a pre-condition of a valid interest.” Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario and Solid Gold Resources Corp., 2011 ONSC 7708, 2012 ONSC 2323

12. MCCARTHY.CA Consultation by Proponents (cont.) ¬some provinces imposing statutory requirements on mining companies regarding consultation with First Nations as a condition of obtaining certain approvals ¬courts have in some cases granted injunctions suspending the activities of mining companies until they conduct consultation with First Nations who have asserted that their interests will be affected

13. MCCARTHY.CA Consultation by Proponents (cont.) ¬Platinex v. Kitchenuhmaykoosib Inninuwug First Nation & A.G. Ontario, 2006 CanLII 26171, 2007 CanLII 16637 (On SC) ¬proponent’s efforts to consult with First Nation found inadequate ¬proponent ordered to participate, together with Crown, in consultation process with First Nation ¬proponent’s exploration activities restricted in meantime

14. MCCARTHY.CA Consultation by Proponents (cont.) ¬Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario and Solid Gold Resources Corp., 2011 ONSC 7708, 2012 ONSC 2323 ¬judge granting injunction held that duty not met as proponent had failed to follow through on Crown’s direction that it consult with First Nation ¬both proponent and Crown ordered to enter into consultation process ¬leave to appeal granted from finding proponent had duty to consult

15. MCCARTHY.CA Wear the White Hat ¬regardless of legal analysis, record of positive efforts vis à vis First Nations will assist if litigation arises ¬a proponent who is seen to have acted honourably towards First Nations (even if no agreement reached) will fare better in Court ¬Court has discretion to grant remedy that does not affect project/proponent’s interests ¬Court can order more consultation while leaving approval under challenge intact

16. MCCARTHY.CA Wear the White Hat (cont.) ¬evidence of: ¬respectful communications with First Nations ¬efforts to elicit and accommodate First Nations’ concerns ¬capacity funding by proponent to assist First Nations to participate in consultation process can all assist in persuading Court not to penalize proponent even where held that duty to consult not fulfilled

17. MCCARTHY.CA Wear the White Hat (cont.) ¬good faith efforts always count ¬in a recent B.C. case, the Court held that case law prevented it from relying on the proponent’s consultation activities -- but then devoted 21 paragraphs of its decision to recounting the proponent’s efforts to reach out to the First Nations ¬proponents who are seen to have acted fairly are more likely to be treated fairly by the Courts

18. MCCARTHY.CA Making the Case for the Rights of Proponents ¬proponents should be entitled to: ¬rely on the government’s processes for obtaining project approvals ¬timely decision-making ¬respect for their investment ¬procedural fairness

19. MCCARTHY.CA Rights of Proponents (cont.) ¬SCC has commented that the burden of achieving reconciliation between Crown and First Nations should not be borne by the proponent: “It is impossible to read the record in this case without concluding that the Paulsen application was simply a flashpoint for the pent-up frustration of the First Nation with the territorial government bureaucracy. However, the result of disallowing the application would simply be to let the weight of this cumulative problem fall on the head of the hapless Larry Paulsen (who still awaits the outcome of an application filed more than eight years ago). This would be unfair.” Beckman v. Little Salmon/Carmacks First Nation 2010 SCC 53

20. MCCARTHY.CA Rights of Proponents (cont.) ¬process for reconciliation of Crown and First Nations interests is a major issue in Canada ¬but so is what happens to business interests in the meantime ¬time may be ripe for proponents whose approvals are tied up in consultation processes to seek their own legal remedies