The Canadian resource sector’s messy duty to consult – by Dwight Newman (National Post – October 30, 2015)

The National Post is Canada’s second largest national paper.

Dwight Newman is professor of law and Canada research chair in indigenous rights, University of Saskatchewan and visiting fellow, James Madison Program, Princeton University.

This week, closing arguments were heard in a lawsuit that highlights the Ontario provincial government’s slowness in developing clear approaches to the duty to consult Aboriginal communities and in offering any clarity to those attempting to operate in the Canadian resource sector.

The decision to be rendered has widespread implications. The case has parallels to the situation of other resource companies, and it highlights the significant dangers in governments trying to muddle through the interaction between Indigenous rights and resource development without making clear decisions and enacting clear legal frameworks. Future prosperity for Aboriginal and non-Aboriginal communities alike will be affected by what happens with these sorts of lawsuits.

Some background helps make clearer what is at stake. The lawsuit sees Northern Superior Resources, a junior exploration company, suing the province for over a hundred million dollars. The suit arises from the province’s failure to take steps on the duty to consult while suggesting — without any legal framework for it at the time — that the company had to deal with consultation.

As it began to move its project forward in 2011 and 2012, the company says that it ultimately faced an Aboriginal community asking the company to pay an amount consisting of 24 per cent of its project spending in return for the community’s support. The company considered that such expectations made the costs unviable and it cancelled further work — even while believing that it had found a world-class mineral deposit that could have had major economic spinoffs.

At the time, the only real guidance on the duty to consult Aboriginal communities with potential Aboriginal or treaty rights claims in an area came from a few early consultation judgments from the Supreme Court of Canada.

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