Canada: The Evolving Duty To Consult Indigenous Peoples: N.S. Court Recognizes A "Duty Of Enforcement Consultation" In R. v. Martin

Last Updated: July 5 2018
Article by Harvey L. Morrison QC

The Crown's duty to consult Indigenous Peoples has evolved considerably since the Supreme Court of Canada's first detailed articulation of it in its 2004 decision in Haida Nation v. British Columbia (Minister of Forests). And it continues to grow. In the June 13, 2018 case of R. v. Martin the Nova Scotia Supreme Court recognized a new duty of "enforcement consultation": consultation by government with an Indigenous community before it takes steps to enforce the law. Although the recognition of a duty of enforcement consultation is unlikely to have a wide effect beyond those public bodies charged with the enforcement of regulatory laws, the decision is a significant reminder to all that the duty of consultation is a dynamic concept, the evolution of which continues:

  • The Supreme Court of Canada's 2017 decision in Ktunaxa Nation v. British Columbia offered a useful reminder that while the goal and the hope of the consultation process is to achieve agreement and reconciliation of Aboriginal and non-Aboriginal interests, the duty to consult and accommodate unproven Aboriginal claims is gives Aboriginal parties neither a guarantee of a particular outcome not a veto power over development.
  • The Supreme Court of Canada's 2017 decisions in companion cases Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. confirmed that the process and decision of an independent regulatory body, such as the National Energy Board ( NEB, soon to become the Canadian Energy Regulator) can trigger the Crown's constitutional duty to consult and can, in some circumstances, fulfill it in part or whole. But the processes and procedures necessary to discharge the duty to consult, and whether a body's process is sufficient to do so, are highly circumstance- specific – and the duty is always ultimately the Crown's to discharge.
  • Next up: in January 2018, the Supreme Court of Canada heard the appeal of Canada v. Mikisew Cree First Nation, but has not yet issued its decision. The question before the Court is whether the Crown's duty to consult affected Aboriginal Peoples applies before legislation is enacted (e.g., while developing and considering policy and legislative objectives, drafting bills and introducing them in the legislature). So far, the duty to consult applies only when the Crown is contemplating administrative action under enacted legislation that may adversely impact their Aboriginal or treaty rights, but not to any point in the legislative process.

The Context of This Case

The Department of Fisheries and Oceans (DFO) developed the Aboriginal Fishing Strategy (AFS) license in response to the Supreme Court of Canada's 1990 decision in R. v. Sparrow where the Court recognized that an Aboriginal right to a food, social and ceremonial fishery is constitutionally protected by s.35 of the Canadian Constitution. However, according to the Sparrow decision, that right is not completely unfettered but is subject to limitations that met [meet] the test of justification. In 1993, DFO adopted a policy stating, at section 14, that "DFO personnel will consult with the relevant Aboriginal Fishing Authority before taking any enforcement action". Beginning in 1994, the Waycobah community and DFO entered into a series of agreements under the AFS that regulated the community's Aboriginal right to fish. Pursuant to the agreements, DFO issued Aboriginal Communal Fishing Licenses that set out catch allocations as well as stipulated the places, times and methods of fishing for members of the community. Under the 2007-2008 Agreement and License, salmon fishing was not permitted in Middle River.

The Charges in This Case

In October 2007, two members of the Waycobah community caught and retained two salmon from Middle River, Nova Scotia. They were (much) later charged with contravening the federal Aboriginal Communal Fishing Licenses Regulations. In the meantime, however, two DFO officials advised the appropriate community contact of the contraventions, but received no reply or objection. The accused admitted that they caught and retained the fish but defended the charges on the ground that they were exercising an Aboriginal right to fish.

The "Duty of Enforcement Consultation" in This Case

The Trial Judge decided the AFS was a justifiable limitation on the accuseds' Aboriginal right to fish, but the Federal Government was obliged to consult the Aboriginal authority before taking enforcement action. As the Federal Government had not fulfilled this obligation to consult, the Trial Judge stayed the proceedings, meaning that no convictions could be entered against the accused. The Federal Government appealed the decision to the N.S. Supreme Court. The Supreme Court agreed with the Trial Judge that DFO owed a duty of enforcement consultation – but decided that in this case, it fulfilled that duty:

The law recognizes a "duty of enforcement consultation". The law recognizes a duty of enforcement consultation independent of any agreement or government policy. But this particular duty of consultation is not automatically imposed whenever enforcement action is contemplated; the circumstances of each case will dictate whether a duty to consult prior to enforcement exists and what it entails.

A duty of enforcement consultation existed in the circumstances of this case. The 1993 Policy was not binding on the Federal Government nor was it incorporated into any agreement between DFO and the Aboriginal community. Nevertheless, a duty of enforcement consultation existed here:

  • The AFS Agreements were entered into annually and were intended to bridge the gap to a permanent resolution of competing rights and interests in the fishery. This meant the "ongoing relationship between the Crown and [the Aboriginal community] was at stake throughout the term of each agreement with a view to future agreements".
  • The annual agreements instituted a "co-management regime which reflected a mutual interest in conservation and a prospective view of the broader relationship".
  • The 1993 Policy was a guideline for those responsible with the implementation of the entire AFS regulatory scheme. While not binding, the Policy was an "important statement of Crown intent" which represented a "DFO standard of compliance with its legal obligations".
  • The Agreements did not deal with enforcement and there were "uncertainties or misconceptions around the part of the Agreement" that the court said "exemplify" the "need for ongoing consultation".

DFO fulfilled its duty in this case. Having found that the duty of enforcement consultation did exist, the court decided the "consultation required was minimal". To fulfil it, it was incumbent on DFO to inform the appropriate officers of the community of the offence and invite feedback. As this was done, DFO discharged its duty of enforcement consultation. Consequently, the stay was set aside and convictions entered against the two accused.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions