Consultation in the Time of COVID-19
The COVID-19 pandemic is raising serious, immediate concerns that are consuming the financial and human capacity of Indigenous communities. These include the need to limit access to communities by non-members, postponing elections, and securing personal protective equipment, among others. Several communities are also dealing with outbreaks. According to Indigenous Services Canada there have been 175 confirmed positive COVID-19 cases, 17 hospitalizations and 2 deaths on reserves across Canada. While this virus worries us all, it is particularly troubling for Indigenous communities who on average have worse health outcomes and life expectancies than the Canadian population as a whole; who have access to substandard healthcare; who may not have access to clean water to wash their hands, food and clothes; who may face overcrowded living conditions; who rely on elders, some of the most vulnerable to the virus, as knowledge keepers and community leaders; and who have a traumatic history of community decimation from diseases such as smallpox, influenza, measles, whooping cough and tuberculosis.
In the midst of these challenges, resource development in Canada continues. While they are battling COVID-19, Indigenous communities continue to face a flood of referrals from government agencies for consultation on licences, permits and other authorizations for resource use and development. It is an insidious effect of COVID-19 that authorizations for resource development are being granted when many Indigenous communities lack the capacity to participate in consultation. Some communities do not have access to the technology to easily shift to work-from-home arrangements; others are reallocating staff and resources to address immediate health and safety concerns; for many communities their leadership and staff time is taken up with the business of keeping their communities safe; and at a human level, we are all struggling to function at our normal capacity in the midst of the fear, sadness and worry that threatens to overwhelm us.
At the same time, for some projects that are already operating or under construction, regulatory requirements put in place to protect the environment and accommodations of Aboriginal and Treaty rights that have resulted from consultation processes are being suspended. It is important to recall that accommodation where necessary is a part of the duty to consult itself. If the promise of accommodation is not fulfilled, neither is the duty. For example, the Alberta government has suspended environmental reporting requirements under the Environmental Protection and Enhancement Act, the Water Act and the Public Lands Act. This means that companies will no longer be required to produce environmental impact assessment reports or provide monitoring data normally required as a condition of licenses or permits. Construction of the Trans Mountain Expansion Project continues, despite concerns about the potential for COVID-19 to spread in work camps, and the Canadian Energy Regulator has suspended on-site inspections for the project (for the time being), and Indigenous monitoring activities that were to be carried out by the Indigenous Advisory Monitoring Committee.
While these circumstances are unprecedented, there are some fundamental consultation principles that provide guidance on what is required from both Indigenous peoples and the Crown.
The courts have told us that Indigenous communities must take advantage of reasonable opportunities to participate in consultation. As the Supreme Court of Canada has noted, consultation is a “two way street”. However, as the Federal Court recognized in Brokenhead Ojibway, “this presupposes, of course, that available regulatory processes are accessible, adequate and provide First Nations an opportunity to participate in a meaningful way”. For many communities in the midst of a pandemic, it cannot be said that this opportunity exists.
Indigenous peoples can address this challenge by pointing out to the Crown the current strain on their capacity and seeking extended timelines, funding, and other adjustments to the consultation process from the Crown. The Crown, for its part, must respond accordingly. As the BC Supreme Court stated in Moulton, where an Indigenous community does not have the capacity to meaningfully participate in consultation the Crown may have to extend timelines or adjust the process in other ways to accommodate their needs.
In addition, several governments across Canada, including British Columbia and Canada, have committed to implement the United Nations Declaration on the Rights of Indigenous Peoples. The BC government passed the Declaration on the Rights of Indigenous Peoples Act in 2019 which committed the provincial government to “take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration.” Commitments such as these are put to the toughest test in hard times. The Crown will have difficulty obtaining consent to resource development that is truly “free, prior and informed” when Indigenous communities are preoccupied with keeping their communities safe from a global pandemic.
This may mean that in order to fulfill its constitutional duty to consult and its international human rights commitment to seek free, prior and informed consent the Crown has to slow the pace at which it processes authorizations, and/or process only urgent or important authorizations that have a compelling public interest such as environmental protection or safety. In some cases, authorizations may simply not be able to proceed. For approved projects, where accommodation measures that resulted from consultation cannot be put in place due to safety concerns, such projects should be put on hold or new accommodations developed. Projects must not go ahead without the necessary safeguards to protect Aboriginal and Treaty rights that have been hard-won by Indigenous communities.
This is the price of the true partnership with Indigenous peoples that Canadian governments at all levels continue to claim that they seek. The Crown must not act as if consultation is merely a speedbump on the road to the inevitable approval of licences and permits, running roughshod over Aboriginal and Treaty rights at a time when Indigenous communities are vulnerable. For consultation to be meaningful, it must only occur when all parties have the capacity to participate and necessary accommodations can be carried out safely. Reconciliation, and the honour of the Crown, demands no less.
FREE WEBINAR: COVID-19 and Indigenous Communities
JFK Law lawyers Robert Janes, QC, Claire Truesdale and Robin Phillips will be presenting at a free webinar put on by the Pacific Business and Law Institute (PBLI), May 26, 2020 1pm-3pm to discuss some of the most pressing issues facing Indigenous people and communities as the result of COVID-19. For more information or to register click here.
Courts across Canada have released the following updates this week on COVID-19 operations for civil matters (we have not included updates for family or criminal matters.
As of May 11, 2020, these are the following updates from the Federal Court of Appeal:
- The Court has extended the period of suspension of the running of time under the Rules, orders and direction of the Court to May 29, 2020. Affidavits sworn or affirmed remotely during the suspension period using methods deemed acceptable in any Superior Court of any province will be accepted for filing during the Suspension period. More information is available here.
As of May 11, 2020, these are the following updates from the Court of Queen’s Bench of Alberta:
- The Court is now processing electronic Without Notice Applications before a Master in Chambers province-wide. More information is available here.
As of May 11, 2020, these are the following updates from the Supreme Court of British Columbia:
- As provided in COVID-19 Notice No. 14 – Application by Written Submissions, booking for applications by written submissions can only be done online. The online booking form is now available here.
As of May 11, 2020, these are the following updates from the Superior Court of Justice:
- The SCJ has announced that it will not resume in-person hearings of matters until July 6, 2020 at the earliest, but expects to announce shortly an expansion of the matters that may be heard virtually. More information is available here.
No updates this week. Saskatchewan’s COVID-19 court updates can be found here.
Manitoba’s COVID-19 court updates can be found here.
The New Brunswick courts have issued a COVID-19 notice which can be found here.
Newfoundland and Labrador
The Supreme Court of Newfoundland and Labrador updates can be found here.
Information from the Court of Appeal can be found here.
COVID-19 updates from the courts of Nova Scotia can be found here.
Prince Edward Island
The most recent COVID-19 notice from the Prince Edward Island courts can be found here.
Information regarding the courts of Quebec can be found here.
COVID-19 updates from the courts of the Northwest Territories can be found here.
COVID-19 updates from the Nunavut courts can be found here.
COVID-19 updates from the Yukon courts can be found here.
 Haida Nation v British Columbia, 2004 SCC 73 (“Haida”) at paras 47-50.
 See Ministerial Order 17/2020 available here.
Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, at para 80.
 Brokenhead Ojibway First Nation v Canada (Attorney General), 2009 FC 484 at para 42.
 Moulton Contracting Ltd. v British Columbia, 2013 BCSC 2348 at para 293.
 SBC 2019, c 44, section 3.