Ontario Court reaffirms that the duty to consult requires “real engagement aimed at promoting … reconciliation”

Eabametoong First Nation, represented by Robert J. M. Janes, QC and Krista Robertson of JFK Law, has succeeded in its application to set aside a mining exploration permit issued by the Ontario Ministry of Northern Development and Mines to Landore Resources Canada. In reaching its decision, the Divisional Court of Ontario found that the Crown failed to discharge its duty to consult. The decision provides important guidance about how courts will assess adequacy of consultation in the future.

The exploration drilling site authorized by the permit is located on important lands within Eabametoong’s traditional territory. In 2013, Landore applied for the permit and contacted Eabametoong to discuss the proposed site. From 2013-2016, Landore and Eabametoong engaged in intermittent discussions about the project and the consultation process. In 2014, Eabametoong provided the Ministry with a list of concerns they had about the proposed project, but it never received a response.

In January 2016, the Ministry and Landore had a private meeting in which Landore told the Ministry that it had entered into negotiations with a major mining company and needed to get the permit approved “as soon as possible.” Eabametoong was never told about the meeting, and did not learn about this development until the start of litigation.

After that meeting, the Crown and Landore unilaterally changed their approach to the consultation process. They refused to enter into any meaningful dialogue. Eabametoong expressed concern about this change in approach, but those concerns were not addressed. Instead, the Crown approved the permit in March 2016.

According to the Court, this conduct breached the duty to consult. In response to the Crown’s and Landore’s arguments that consultation was sufficient, the Court held that it had to “look beyond form to substance,” and that in substance, there was no real and genuine attempt to engage in meaningful discussion with Eabametoong. The Court also found that the unilateral change in consultation process without notice to Eabametoong was inconsistent with the Honour of the Crown.

As a result, the Court set aside the decision to approve the permit. Although the Crown asked the Court to issue a direction for more consultation, it declined to do so. It reiterated that the duty to consult had to be discharged before, not after, a decision is made.

This decision reinforces that the duty to consult involves more than “the use of words or the appearance of listening.” Going through the motions is not enough. Instead, the consultation process must proceed “in a way that fosters trust as opposed to misunderstanding and betrayal,” which did not happen in this case.

The full decision of the Court can be accessed here.