Government failed in its duty to consult

Cathy Guirguis says a recent Divisional Court decision confirms that meaningful consultation with First Nations is not just a box-ticking exercise.

A recent Ontario Divisional Court decision has determined that the provincial government failed in its obligation to consult indigenous communities before it approved a limestone quarry on their traditional lands.

In Saugeen First Nation v. Ontario, the Divisional Court set aside a licence granted to T&P Hayes Ltd. to develop the quarry, until the Ministry of Natural Resources and Forestry conducts adequate consultations with the Saugeen Ojibway Nation and accommodates its concerns.

The Divisional Court found that the ministry had established a consultation process with the community, but that it did not “pass constitutional muster”.

“Imposing [the ministry’s] view of what is reasonable, without adequate consultation with [Saugeen Ojibway Nation], would be to endorse a version of paternalism entirely inconsistent with the duty to consult: it would be tantamount to saying ‘we know what is best for you and we don’t need to hear from you on that issue,’” Justice David Corbett wrote in the decision.

Lawyers say the decision confirms the law around scope of duty to consult with affected indigenous communities, and reaffirms that such consultations must be done in a meaningful way.

Cathy Guirguis, the lawyer representing the Saugeen Ojibway Nation, says that the government and developers often view consultation with First Nations as a box-ticking exercise that they need to complete before proceeding to make the decision they had already intended to make.