‘Duty to Consult’ a Cruel Joke If First Nations Can’t Handle the Load – by Alex Power (The Tyee.ca – Janaury 16, 2017)


Insider reveals hidden barrier to fair dealing with Indigenous governments about big-ticket projects.

Whenever there’s a large project in Canada, whether it’s a new mine or major infrastructure, there’s a constitutionally based “duty to consult” with affected Indigenous parties. In the Northwest Territories, where I live, the regulatory boards have done a pretty good job of making sure that consultation is rigorous and that developers and governments fully engage with Indigenous governments.

Ironically, this rigour has led to a situation where meaningful consultation doesn’t currently exist. It’s a problem I know first-hand and one that is too common across the country. How did this happen?

There are a couple of technical bits to this “duty to consult” that need to be understood. Given that my somewhat long-winded job title is Regulatory and Research Specialist for the Yellowknives Dene First Nation Department of Land and Environment, this is the sort of thing I think about daily.

First, the duty lies with “the Crown” — or as everyone who’s not a lawyer calls them, “the Feds.” This duty is entrenched in the Constitution, so there’s no way around it.

Second, the duty can be delegated to an authority such as a province or an appropriate regulatory board. In the Northwest Territories, much of this consultation is mediated by regulatory boards such as the Mackenzie Valley Land and Water Board.

Finally, the requirement for consultation is proportional to the impact of the project; i.e., massive projects require massive consultation. Think diamond mines.

For the rest of this opinion column, click here: https://thetyee.ca/Opinion/2017/01/16/Duty-Consult-Cruel-Joke/?utm_source=weekly&utm_medium=email&utm_campaign=160117