Globe editorial: The ‘duty to consult’ Indigenous Canadians, and its limits (Globe and Mail – July 27, 2017)

Indigenous Canadian communities have unique rights under Section 35 of the Constitution. These protections, covering pre-existing rights and those acquired by treaty, are extensive – but some are also limited.

That’s the takeaway from a pair of Supreme Court rulings released Wednesday. One considered the National Energy Board’s approval of an oil and gas exploration project, over the objections of an Inuit community; the Court struck the project down. The other case looked at the NEB’s approval of the Line 9 pipeline reversal in Ontario; the Court said that, even though an affected Indigenous community was opposed to the project, the regulator had properly consulted and properly approved it.

At issue in both cases is the Crown’s “duty to consult.” When a development – like a pipeline or an oil-exploration project – has an impact on an Indigenous community’s rights, such as the right to hunt or fish on traditional native territory, they must be adequately consulted.

“The duty to consult,” wrote the Court, “is rooted in the need to avoid the impairment of asserted or recognized rights.” For a consultation to pass constitutional muster, it must be real and substantial. It can’t just be about collecting complaints and suggestions, and then ignoring them. The Indigenous community must be fully informed of the project’s details and consequences, and given the opportunity to respond. Depending on the evidence, mitigation measures may have to be taken.

“The duty to consult,” said the Court, “requires an informed and meaningful opportunity for dialogue with Indigenous groups whose rights may be impacted.”

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