Crown obligations

9.77       In both New Zealand and Canada it has been recognised that the Crown may owe obligations to Indigenous peoples with respect to dealing with their land. Those obligations are variously described as fiduciary in character, obligations of good faith, or obligations which flow from the honour of the Crown. Although they take different legal forms, the various formulations recognise and emphasise the particular nature of the relationship of the Crown with its Indigenous population and the need to balance the rights of the title holders with wider public interests.

The duty to consult in Canada

9.78       The duty to consult, and where appropriate, accommodate First Nations peoples, arises when the Crown has knowledge, real or constructive, of the potential existence of an aboriginal right or title and contemplates conduct that might adversely affect it.[109] The duty to consult and accommodate, and some aspects of the fiduciary duty, are functionally similar to the protections offered by the future acts regime under the Native Title Act.[110]

9.79       The duty has a foundation in the principle of the ‘honour of the Crown’ and the Crown’s unique relationship with Aboriginal peoples. It is necessary that the Crown act with honour in order to achieve the reconciliation of the pre-existence of aboriginal societies with the assertion of sovereignty of the Crown and its control over land and resources that were formerly in the control of that people.[111] The duty to consult and accommodate supports the honour of the Crown, and is part of the process of reconciling the pre-existence of aboriginal societies with the sovereignty of the Crown.[112]

9.80       To further this process of reconciliation, it is necessary for the Crown to recognise and respect indigenous rights. The reality that this may take many years means that the Crown cannot ignore, or fail to treaty fairly, aboriginal rights that are awaiting determination. It must respect potential, but unproved, rights and interests. Once proved, these rights and interests will be protected and affirmed by s 35(1) Constitution Act, 1982.[113]

9.81       The content of the duty to consult and accommodate varies with the circumstances. Generally, the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and the seriousness of the potentially adverse effect on the right or title claimed.[114] The duty to consult and accommodate is part of the process of reconciliation which begins with the assertion of sovereignty by the Crown, and thus any efforts to consult and accommodate should be consistent with the objective of reconciliation.[115]

9.82       The duty to consult and accommodate was clarified in the recent decision of the Supreme Court of Canada in Tsihlqot’in Nation.[116] The duty owed by the Crown varies depending on whether the rights or title have been established.

9.83       At the claims stage, prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting those rights or title about proposed uses of the land and, if appropriate, to accommodate the interests of such claimant groups. If the Crown fails to discharge its duty to consult, various remedies are available including injunctive relief, damages, or an order that consultation or accommodation be carried out.[117]

9.84       After aboriginal title to land has been established, the Crown must seek the consent of the title-holding Aboriginal group to developments on the land.[118]

9.85       If aboriginal title holders do not consent to a government taking action on their lands, it may still be possible if the Crown demonstrates that:

  • it has discharged its procedural duty to consult and accommodate;

  • its actions are in pursuit of a compelling and substantial objective; and

  • the action is consistent with the Crown’s fiduciary duty.[119]

9.86       To be consistent with the Crown’s fiduciary duty, the government must ‘act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations’.[120] Its actions must also be proportional. That is:

  • they must be necessary to achieve the government’s goal;

  • they must go no further than necessary to achieve that goal; and

  • the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the aboriginal interest.[121]

9.87       If the duty is breached, ‘the usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title’.[122]

9.88       The overview of the law relating to aboriginal rights and title in Canada and customary rights and claims to the seabed and foreshore in New Zealand reveals that the common law and judicial interpretation of statute has applied quite similar tests to recognise and determine Indigenous Peoples’ rights to traditional land and waters to the laws and customs model that have been adopted in Australia. However, there has been a more direct focus on the ‘rights’ claimed than in establishing the laws and customs under which such rights are possessed.

9.89       In Canada, the occupancy foundation for aboriginal title still requires ‘continuity’, but it need not be an unbroken chain. There is a stronger reliance upon present occupancy of land and waters by First Nations peoples, as going toward proof of continuity. There is also a clear acknowledgement that aboriginal rights should not be ‘frozen’.

9.90       In New Zealand there is a similar trajectory to Australia in the interplay between common law and statute. With respect to claims to the seabed and offshore in New Zealand, judicial recognition of aboriginal territorial title (Maori customary title) was followed by a statutory response. The legislative history of the provisions dealing with rights to be exercised in a ‘substantially uninterrupted manner’ is of particular relevance for the Native Title Act. The statutory confirmation that rights may evolve or adapt over time also has relevance for ALRC recommendations in Chapter 5.

9.91       The ALRC notes the view of Kirby J in Western Australia v Ward that care must be exercised in the use of authorities from other former colonies and territories.[123] Nevertheless, comparative jurisprudence demonstrates many similar issues in former British colonies, with respect to the accommodation of, and proof of, indigenous rights to land and waters at common law. The ALRC, therefore, considers that there is merit in understanding the parallel development of law between these jurisdictions that can be fostered by a comparative law reform process.