1E9Ct5D

ange from good faith consultation with agroup claiming Aboriginal title andappropriate accommodation of its claimedinterest (e.g., preserving the area until theclaim is resolved), to the potentialcancellation of a project where an Aboriginalgroup has established title to the land inquestion and the Crown conduct wouldunjustifiably infringe that title.The Crown can only justify an interferencewith land held under Aboriginal title byproving that (a) it has fulfilled its DTC and(b) the proposed activity is necessary toachieve a legitimate government goal; theactivity will minimally impair the Aboriginalinterest in the land; and the expectedbenefits of the project are proportionate,meaning that they “are not outweighed byadverse effects on the Aboriginal interest.”(This justification process will not benecessary if the Aboriginal group consentsto the proposed Crown activity on the land.)There is some indication that the Crown willhave to contribute “capacity funding” toAboriginal groups to facilitate theirmeaningful participation in the consultationprocess. Some provinces have establisheda direct funding mechanism for consultation,and in other cases, funding has beenprovided as part of the overall publicconsultation process for a project.If the Crown breaches its DTC, theAboriginal group has several possibleremedies at its disposal: the group may tryto get a government decision quashed;move for an injunction to suspend theCrown project; seek a court order forcingthe Crown to consult; or sue for damages.The Duty to Consult and ProjectProponentsThe most contentious area of late has beenthe role of private industry projectproponents in the process of consultation,and whether and to what extent they shareresponsibility with the Crown toaccommodate Aboriginal interests. Therehas been litigation by Aboriginal groupsagainst proponents and, more recently, byproponents against the government.According to the Supreme Court of Canada,the Crown can delegate theoperational/procedural “on the ground”aspects of the DTC, but the permissibleextent of this delegation will continue to befleshed out by the courts.In practice, government regulators anddecision makers are placing increasedconsultation obligations on private industry.Although the DTC is ultimately the Crown’sresponsibility and case law emphasizes therole of government in the consultationprocess, governments are placingincreasing pressure on private companies toalso consult with Aboriginal groups and togo beyond existing regulatory and corporaterequirements. There are also severalgovernment policies in place, including inAtlantic Canada, that may outline duties ofproject proponents; these are an importantsource of information to review beforeembarking on projects that have thepossibility of affecting Aboriginal groups.Any authorizations or regulatory approvalsgranted by government without requisitesatisfaction of consultation obligations aresubject to legal challenge and can bequashed and remitted to the responsiblegovernment departments forreconsideration. Furthermore, a breach ofthe DTC may also entitle the First Nation toAboriginal Law 152