Ontario Aboriginal Law: Duty to Consult, Treaties, and Indigenous Rights

Section 35 Rights

Section 35(1) of the Constitution Act, 1982 provides: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

The Supreme Court of Canada has interpreted s.35 broadly since R v Sparrow, [1990] 1 SCR 1075, which established that s.35 rights are not limited to the specific form of the right existing at 1982 — they include rights that were “existing” in a broader sense, capable of evolution. Sparrow also established the justification framework: the Crown can infringe s.35 rights only if it can justify the infringement by showing a compelling and substantial objective and that it has upheld its fiduciary duty to the Aboriginal group.

Aboriginal Title

Aboriginal title is the most comprehensive Aboriginal right — it confers the right to exclusive use and control of land for a variety of purposes. To establish Aboriginal title, the claimant group must prove (per Tsilhqot'in Nation v British Columbia, 2014 SCC 44):

Sufficient pre-sovereignty occupation of the claimed territory
Continuity of occupation from pre-sovereignty to the present
Exclusive occupation (historically, by the group's own standards)

Aboriginal title has not been established by litigation in Ontario, but many Ontario land areas are subject to claimed but unceded Aboriginal title or are covered by historic treaties that ceded title under colonial-era treaty terms.

Aboriginal Rights Spectrum

Aboriginal rights exist on a spectrum from site-specific practices to more general rights. The test for establishing an Aboriginal right (per R v Van der Peet, [1996] 2 SCR 507) requires the claimant to demonstrate that the practice, custom, or tradition was an integral part of the distinctive culture of the Aboriginal group prior to European contact. Rights include:

Hunting, fishing, and gathering rights in traditional territories
Rights to particular resources (e.g., salmon) in specific areas
Ceremonial and cultural practices

The Duty to Consult and Accommodate

The duty to consult was articulated by the Supreme Court in Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511, and Taku River Tlingit First Nation v British Columbia (Project Assessment Director), [2004] 3 SCR 550.

When does the duty arise?: The duty arises when the Crown has:

Real or constructive knowledge of a potential Aboriginal right or title claim
Contemplated Crown conduct (decision, action, legislation, administrative approval) that might adversely affect that right or title

The duty is owed by the Crown, not by private parties — though the Crown can delegate the procedural aspects of consultation to project proponents, the duty remains with the Crown (Haida Nation at para 53).

Depth of consultation (the spectrum): The depth of consultation required is proportionate to the strength of the Aboriginal rights or title claim and the potential severity of the adverse impact. At the low end (weak claim + minor impact): notice and an opportunity to discuss. At the high end (strong claim + major impact): deep consultation, opportunities to make submissions, and a duty to seriously consider accommodating concerns through project design changes or other modifications.

Accommodation: Where the Crown has a strong duty to consult, it may also be required to accommodate — to take steps to avoid infringement or to mitigate adverse effects. Accommodation is not a veto — the Crown retains authority to proceed, but must balance Aboriginal interests meaningfully.

Consultation in Practice: Ontario Projects

In Ontario, duty to consult issues arise in:

Environmental assessments under the EAA and federal IAA
Mining claims and exploration permits under the Mining Act
Crown land dispositions and resource extraction licences
Infrastructure development on Crown land
Decisions under the Endangered Species Act, 2007

The Ontario Mining Act was significantly amended in 2009 and 2012 to require consultation with First Nations before staking mining claims in certain areas — a direct response to the duty to consult obligations. Ontario also established the Resource Revenue Sharing policy for forestry and aggregates.

Historic Treaties in Ontario

Ontario is covered by a series of historic treaties:

Pre-Confederation treaties (pre-1867): The Robinson-Superior (1850), Robinson-Huron (1850), and various earlier “Upper Canada” treaties covering much of southern Ontario. The Robinson Treaties were signed by the Province of Canada with Ojibwe nations for cession of large tracts of land north of lakes Huron and Superior.
Post-Confederation treaties (1867-1930): Treaty 9 (James Bay Treaty, 1905-1906) covers the vast majority of northern Ontario. Treaty 9 was signed by the federal and Ontario governments with Ojibwe and Cree nations. The Mushkegowuk First Nations have argued that Treaty 9 was not fully explained to signatories and that adhesions have been signed under misrepresentation.
Unsurrendered Territories: Parts of southern Ontario, particularly the Ottawa valley and areas around Kingston, have claims to unsurrendered lands based on disputes about the validity of historical purchase processes.

The Restoule Litigation (Robinson Treaties Augmentation)

One of the most significant recent developments in Ontario treaty law is the Restoule v Canada (Attorney General) litigation, involving the Robinson-Huron and Robinson-Superior Treaties. The treaties contain an augmentation clause — the Crown committed to increase annuities if revenues from the territory permitted. The annuities were raised from $1.60 to $4 per person in 1875 and never increased again.

In 2023, the Supreme Court of Canada held in Ontario (Attorney General) v Restoule, 2024 SCC 8, that the Crown must increase the Robinson Treaty annuities — the augmentation clause is a living obligation that must be honoured. The decision affirmed that treaty obligations must be interpreted generously and with a view to the honour of the Crown. The remedy phase is ongoing.

UNDRIP and Canada's Implementation

Canada adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2016 (withdrawing earlier objector status). Parliament enacted the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14, which affirms UNDRIP as a universal international human rights instrument and requires the federal government to ensure that Canadian laws are consistent with UNDRIP.

FPIC (Free, Prior and Informed Consent): Article 19 of UNDRIP requires states to “consult and cooperate in good faith” with Indigenous peoples to obtain their “free, prior and informed consent” before adopting legislative or administrative measures that may affect them. FPIC is more demanding than the Haida Nation duty to consult — it implies a need for agreement or consent, not merely consultation.

Canadian courts have not yet interpreted FPIC as conferring a veto right in Canadian law. The relationship between UNDRIP's FPIC standard and the Haida Nation consultation framework is an evolving area of Canadian law.

Fiduciary Duty of the Crown

The Crown owes a fiduciary duty to Aboriginal peoples in certain circumstances — particularly where the Crown undertakes to act on behalf of Aboriginal peoples or takes control of interests that exist for their benefit. In Wewaykum Indian Band v Canada, [2002] 4 SCR 245, the Supreme Court clarified that the Crown's fiduciary duty is not a general duty but a specific duty arising from particular Crown-Aboriginal relationships (reserve creation, surrenders, treaty management).

Summary

Ontario Aboriginal law has been reshaped by the Supreme Court's decisions inHaida Nation, Tsilhqot'in, and most recently Restoule. The duty to consult is now a central requirement in resource and infrastructure development across Ontario. Practitioners advising project proponents or Crown agencies must assess the strength of Aboriginal claims in the project area and design consultation processes proportionate to those claims. Treaty interpretation continues to evolve as courts apply generous interpretive principles to historic treaty texts.

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