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Headshot of Jeffrey Simpson. (Brigitte Bouvier/Brigitte Bouvier/For The Globe and Mail)
Headshot of Jeffrey Simpson. (Brigitte Bouvier/Brigitte Bouvier/For The Globe and Mail)

Jeffrey Simpson: The struggle over ‘duty to consult’ with aboriginals Add to ...

Lots of very big numbers – hundreds of billions of dollars – are being thrown around about future natural resource investment in Canada, with aboriginals demanding their share.

Their demands are based on treaty rights, however defined, and from aboriginal rights, however defined, in the Charter of Rights and Freedoms. Making the demands has been easier than negotiating them.

Aboriginal rights have been subject to political debate and glacial negotiations between aboriginals and governments since they landed in the Charter. In British Columbia, a process for settling disputes has sputtered for more than two decades, with many aboriginal groups refusing even to participate. Elsewhere in Canada, a huge backlog exists of unresolved claims related to signed treaties.

Given such little progress, aboriginals have tried to advance their cause in law. There they have found courts willing to move the yardsticks in their favour.

One yardstick established by the Supreme Court of Canada is the Crown’s obligation to “consult” aboriginal groups if lands they claim are to be developed for, say, mining or roads or oil and gas development. This obligation has been, and remains, hard to define.

Back in 1997, the Supreme Court decision in the Delgamuukw case established the obligation to consult and tried, not terribly successfully, to define what it meant. Put crudely, the court outlined a sort of sliding scale of obligations: the stronger the aboriginal claim, the more serious the consultation.

If, for example, a company wanted to run a pipeline down the main street of an aboriginal village, the aboriginals would have a veto. If, however, the pipeline would run over lands far removed from the centre of aboriginal settlement, where perhaps occasional hunting forays had occurred long ago, then the obligation to consult would be quite limited.

The trouble was, and remains, that no one can know before a claim is settled, or a treaty signed, just how credible the claim might be. Even then, a treaty signed long ago can be variously interpreted today.

It’s obviously in the interests of aboriginals to make the most sweeping initial claims possible, whether they have much justification in history, current reality or law. As long as the claim is there, aboriginals can interpret Delgamuukw as giving them a de facto veto, even if that isn’t what the ruling said.

In a later case, the Supreme Court took another stab at the conundrum of defining consultation. It said governments had a “duty to consult” when “the Crown has knowledge … of the potential existence of the aboriginal right or title and contemplate conduct that might adversely affect it.” The “duty to consult” was related, once again, to the strength of the potential or actual aboriginal claim.

Once again, the meaning and reality of “consult” was left vague, perhaps necessarily so, since how can one define a process of consultation that would be agreed to by all parties. In practice, what “consult” means to aboriginals is “we must agree.”

Now the consultation goalposts have moved further toward the aboriginals’ conception, courtesy of a ruling by the Court of Appeal for Yukon. In a case involving the Ross River Dena Council, the court said the way the government had previously dealt with mining claims and their possible impact on aboriginal land claims was inadequate.

Mining companies, in what was called an “open entry system,” would prospect, stake a claim, record it with the government registry, then begin more intensive exploration, with exploration activities subject to government legislation that would then require consultation with aboriginals.

Not good enough, said the court. Even before a company does anything, the government’s obligation to consult kicks in. From now on – in ways yet to be determined – governments have to consult aboriginals before anything is done that might some day, somehow, have an impact on whatever land they might claim, or have claimed, even if such claims haven’t been tested or resolved.

Aboriginals must be delighted with goalposts moving closer all the time toward their conception of consultation as approval by them of anything and everything that might occur on land over which they claim rights, proven or unproven.

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