Friday, July 22, 2016


With the recent release of the Federal Court of Appeal’s decision in Gitxaala Nation v. Canada, 2016 FCA 187 finding the Government of Canada failed in its duty to consult Canada’s Indigenous peoples concerning the Northern Gateway Pipeline prior to approving the project, the important legal issue of the duty to consult is back in the public eye. Although the issue was first highlighted in 2004 by the Supreme Court of Canada’s twin decisions of Haida Nation v. British Columbia and Taku River Tlingit First Nation v. British Columbia, the Court's findings that no consultation was inadequate for the Haida but quite limited consultation (in the words of one official I know who had first-hand knowledge of the process) was adequate for the Tlingit left more questions unanswered than answered.

That the duty to consult may have recently overtaken all other Indigenous rights in the public mind is demonstrated by one National Post writer suggesting a few days ago: “Section 35 of the Constitution has evolved into a duty to consult native populations.” While that might not be quite the case, that conclusion seems to be indicative of where Indigenous rights victories have most frequently of late been occurring in the courts. 

I've been fortunate to have had the opportunity to spend a lot of time thinking about the boundaries of the duty to consult while listening to the views of those within federal and provincial governments, from First Nations, and from members of the public and industry as a result of my work as both a negotiator and as legal counsel to First Nations and to the Government of Canada on Aboriginal rights issues in British Columbia, Manitoba, Ontario and Atlantic Canada. From that experience, here's my short list of the top three things not to do if you hope to fulfill the duty to consult Indigenous peoples in Canada. 

1. THINK IT’S ONLY ABOUT MUFFINS AND COFFEE. The majority of the Federal Court of Appeal in Gitxaala found: “Meaningful consultation is not intended simply to allow Aboriginal peoples to ‘blow off steam’ before the Crown proceeds to do what it always intended to do. Consultation is meaningless when it excludes from the outset any form of accommodation.” 

I only took up drinking coffee while serving as a Federal Treaty Negotiator in British Columbia. It served as a welcome break from negotiating table tension in rooms that in days gone by might have had chain smoking negotiators working out solutions to age old challenges. And muffins always seemed to be an important complement to the coffee when the host party had the budget to spring for them. 

But the Federal Court of Appeal has now confirmed for us what we all should have already known. Meeting for the sake of meeting doesn’t cut it so that the government can check a box and claim Indigenous peoples have been “consulted.” The Court found the few meetings that happened on Northern Gateway were “brief, hurried and inadequate” and that the government officials present were not “empowered to dialogue on all subjects of genuine interest to affected First Nations, to exchange information freely and candidly."

2. IGNORE WHAT YOU WERE TOLD DUIRNG THE CONSULTATIONS.While it falls to federal or provincial governments to compile and somewhat summarize what they're told during consultations, the Federal Court of Appeal has now indicated that “recommendations, including any new proposed conditions, needed to be formulated and shared” for the industry proponent’s own input. Then “finally, these recommendations and any necessary information needed to be placed before the Governor in Council for its consideration” who must in turn have “provided reasons for its decision to fulfill its obligations under … the duty to consult.” 

Thus just as the dialogue process is about more than muffins and coffee, the back end of the consultation process is about much more than just sticking everything you’ve heard in a binder or database that will never again see the light of day. The input must be analysed to assess if changes to the originally proposed plan of action are needed, industry proponents must be given a chance to comment on what was heard during the Indigenous consultations, and the onus is on the government in its final decision to justify why and how it's met its consultation obligations.  

3. THINK THE LAW IS SETTLED AND THAT THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES WON’T INFLUENCE CANADIAN LAW. When the new Government of Canada finally adopted the United Nations Declaration on the Rights of Indigenous Peoples, Canada’s Indigenous Affairs Minister stated: “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution” and that it was “breathing life into Section 35 and recognizing it as a full box of rights for Indigenous Peoples in Canada.” 

Some of the earlier political opposition to the Declaration seemed to proceed under the falsehood that it contained an absolute veto. I worked long enough in the international law world to know that if the UN really wants anyone to have a veto (like the five permanent members of the Security Council), it says so. There is no stated veto in the Declaration, only important principles of respect, equality, dignity and redress for past injustices.

The Declaration has always been a highly progressive document, whose purpose is alluded to in its preamble where the signatories state they are “Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.” Can one really argue with such principles?

Canada earlier got tied up in all sorts of knots over the precise legal meanings of lots of the Declaration’s aspirational affirmations, all of which must however be read in the context of the totality of the document which acknowledges the undeniable reality that “indigenous peoples have suffered from historic injustices as a result of … colonization and dispossession of their lands” and that the signatories are “Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring an end to all forms of discrimination and oppression."

The Declaration is a ground breaking legal document, that will undoubtedly influence the future development of Canadian law, including the interpretation and implementation of the duty to consult. All we can be certain of for now is that the duty will continue to evolve, and be clarified by the Courts and possibly Parliament. We would be making a grave error to think that the law on the duty to consult is even close to being settled. 

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