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Duty to consult and accommodate. Remember those five words. Properly applied, they could help usher in a new era of co-operation between First Nations and natural resource development. Ignored or disregarded by governments, or used to raise unrealistic expectations of unlimited aboriginal power, they could herald a period of discord, mistrust and lost opportunity – including for indigenous people.
The words themselves are drawn from a Supreme Court decision on a British Columbia government decision to transfer some tree licences to a forestry company. The Haida First Nation sought an injunction to stop the transfer, because it believed it violated their aboriginal rights. The B.C. government claimed it had the traditional legal and constitutional authority to manage the province’s natural resources as it deemed appropriate.
When the issue reached the Supreme Court, neither party got what it wanted. Instead of confirming government power, or transferring some or all of that power to aboriginal peoples, the court created the duty on governments to consult and accommodate aboriginal interests when government decisions encroach on potential or established aboriginal or treaty rights.
Final decision-making power remains in government hands, but before a final decision can be reached, both sides are required to engage in good-faith consultations and, if significant dislocations are anticipated, First Nations’ concerns must be accommodated.
Predictably, in the politically charged atmosphere of aboriginal rights, especially surrounding resource development, the duty to consult has been elevated by some aboriginal leaders into a veto. No matter what the consultative process, no matter how responsive governments are, a minority view has emerged that aboriginal people may decide unilaterally whether they have been adequately consulted.
Readers who follow these things will have noticed the shift in the language used by indigenous people to claim their rights in the years since the Supreme Court’s enunciation of the duty-to-consult doctrine. Whereas it used to be that the chief legal approach was to invoke treaty and aboriginal rights, objections are increasingly framed in terms of inadequate or unacceptable consultation about what those rights entail.
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