The Attorney General of Québec (AGQ) is appealing a judgment of the Superior Court handed down on October 18, 2024. According to the AGQ, the trial judge erred in holding that accepting a map designation notice regarding a new claim under the Mining Act may adversely affect the First Nation’s claimed Aboriginal title or rights. The AGQ therefore seeks to set aside the judgment of the Superior Court. This article summarizes the key points of the trial judgment and the AGQ’s grounds for appeal.
Key Points of the Superior Court Judgment:
In Mitchikanibikok Inik First Nation (Algonquins of Barriere Lake) c. Procureur général du Québec the Superior Court ruled that both the Québec government and Québec’s Minister of Energy and Natural Resources (today the Minister of Natural Resources and Forests) have a duty to consult and, where appropriate, accommodate the Mitchikanibikok Inik First Nation (MFN), who are also known as the Algonquins of Barriere Lake, before accepting a map designation notice regarding any new claim under the Mining Act[1] on its territory and before undertaking specific exploration activities on that territory.
The decision has an effect on the mining claims already granted on the territory of the MFN, which claims, in the Court’s opinion, were granted in breach of the duty to consult. This decision is another example of the recent trend of Canadian courts recognizing that the duty to consult is triggered at the claim registration stage[2] [3]. However, the AGQ’s appeal will be attempting to reverse this trend in Québec.
- The Superior Court stated that the Crown has a duty to consult and, where appropriate, accommodate the MFN before a map designation notice of a new claim on its territory is accepted and specific exploration activities are undertaken. This approach differs from the current practice of granting mining claims without prior consultation with Indigenous peoples, which the court found to be inconsistent with the duty to consult. In particular, the Court relied on the fact that the collection of mineral samples could have adverse consequences on the First Nation’s land claims, irreversibly affecting non-renewable resources and affecting Indigenous rights, including the carrying out of cultural and spiritual practices.
- The Superior Court confirmed that the Mining Act was constitutional. Section 2.1 of the Mining Act provides that it must be interpreted in a manner consistent with the Crown’s duty to consult, which is to be adapted depending on the particular circumstances. According to the Court’s interpretation, the Mining Act gives the Crown the flexibility needed to fulfill its duty to consult with Indigenous peoples and, therefore, it is not necessary to issue a declaration of unconstitutionality.
- The Court ruled that it was not necessary to consult the MFN when renewing or transferring mining claims. Since these procedures are considered to be administrative and automatic, they do not involve any discretion that would require further consultation or accommodation by the government.
AGQ’s Grounds for Appeal
The AGQ submits that the trial judge erred in law in determining that the acceptance of a map designation notice regarding a new claim under the Mining Act had sufficient potential adverse effects to trigger the duty to consult, since the conditions necessary to trigger the duty are not met by the map designation.
In the event the Court of Appeal maintains the Superior Court’s ruling that the acceptance of a map designation notice regarding a new claim under the Mining Act had sufficient potential adverse effects to trigger the duty to consult, Québec argues that certain statements made by the Superior Court regarding the duty to consult on existing claims are vague, subject to divergent interpretation and inconsistent with the logic of the constitutional duty to consult Indigenous peoples. The AGQ believes that the Superior Court’s view that there is a duty to consult on measures that have already been implemented conflicts with the logic of the constitutional duty to consult. According to the AGQ, since the claims have already been acquired or registered and the exploration work has already been done, a consultation would no longer make sense and could not take into account the respondent's concerns or result in accommodations. The AGQ finds this concept all the more problematic in that it could be applied retroactively to actions predating the Supreme Court of Canada’s ruling that first recognized the duty to consult in 2004 (the Haida decision). The AGQ therefore wants the Court of Appeal to clarify that the duty to consult must apply prospectively only.
We will continue to monitor this case closely and provide updates on any developments.
