The struggle over ‘duty to consult’ with aboriginals – by Jeffrey Simpson (Globe and Mail – February 2, 2013)

The Globe and Mail is Canada’s national newspaper with the second largest broadsheet circulation in the country. It has enormous influence on Canada’s political and business elite.

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.

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