The duty to consult: What does it really mean?

BY DAVID BURSEY, SPECIAL TO THE SUNMAY 10, 2012

In 1982, Canada struck a constitutional bargain with its aboriginal peoples. Canada recognized and affirmed their existing aboriginal and treaty rights and embedded that commitment in the Constitution. Yet, 30 years later, many aboriginal groups do not enjoy true reconciliation of their interests with the Crowns and often must struggle to share in the benefits of resource development within their territories. British Columbia has more than 200 aboriginal groups, with a diversity in culture that is unparalleled in other parts of Canada. Defining the nature and extent of aboriginal rights in British Columbia is challenging and the stakes are high. So how do we move forward with much needed economic development while the treaty negotiations continue? Part of the answer lies in being practical in the interim. Governments, first nations and developers must explore the opportunities to work together on resource development and, when doing so, be realistic about their expectations. The courts have established broad principles about how the Crown and first nations should proceed in the face of uncertainty over asserted yet unproven rights. But, the specific details in the judgments are sparse. Stated simply, the Crown has a duty to consult with first nations whose asserted aboriginal rights may be affected by a proposed Crown decision. Several principles underlie this duty. First, the courts are not creating new rights, but are simply recognizing aboriginal rights and governance structures that existed before European contact in Canada. The rights stem from distinctive cultural practices that are integral to the first nation and have continued to the present day. The form and geographic reach of the right will vary according to the historical practice and the connection with particular land. Aboriginal title is a right to the land itself and its related resources. Aboriginal title is claimed throughout much of British Columbia, and this claim triggers the deepest level of consultation. Second, the Crown must act honourably in its dealings with first nations when their rights may be affected. The Crown should not unilaterally exploit land and resources that a first nation is claiming. Otherwise, the first nation may be left with a depleted territory when the claim is finally settled.

Third, the scope and content of the duty to consult will depend on the strength of the claim and potential for impact. The stronger the claim and the greater the potential impact, the deeper the consultation must be. Fourth, the objective is always to reconcile the interests of the Crown and the aboriginal group. This principle requires a sincere effort by the Crown to understand the aboriginal interest and to assess the potential impact on that interest. If the proposed decision entails a real risk of adverse impact, then the Crown must consider how to accommodate the interest. Ultimately, the accommodation will matter the most. Consultation is not merely an exercise in discussion. First nations want their interests to be recognized. Recognition may involve different forms of accommodation: participating in the decision-making, avoiding adverse impacts, or sharing in the benefits of activities in their territories. Although the duty to consult rests with the Crown, project developers must take on most of the actual work and cost associated with consultation. Success lies in embracing the concept of aboriginal ownership of resources and finding ways to work with the aboriginal resource owners. This approach takes time and commitment early in the project planning stage, but defining the rules of engagement through negotiation helps manage the risks associated with project approval. The Crown agencies have an important role to play in consultation efforts by setting consultation policy at the resource sector level and guiding the consultations at the project level. The Crowns also have considerable resources to help assess the strength of claims and resolve overlapping claims. Also, some forms of accommodation, such as revenue sharing, can be achieved through government policy which then distributes the consultation burden more fairly among industry participants. Increasingly, resource developers and first nations are working together, which is creating sustainable economic enterprise for both. In the end, this practical recognition of aboriginal groups as joint resource owners with the Crown will make the formal recognition of aboriginal rights easier. David Bursey is with Bull, Housser, LLP.
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