Elmira Aliakbari is associate director of natural resource studies and Ashley Stedman is a senior policy analyst at the Fraser Institute.
After weeks of consideration, the Trudeau government recently said it would not appeal the Federal Court of Appeal’s decision to quash the approval of the Trans Mountain pipeline expansion, and would instead further consult Indigenous groups for an undetermined amount of time.
It seems the government’s approach to Indigenous consultation is try and try again. This time, the government hopes that appointing former Supreme Court justice Frank Iacobucci to oversee the consultation process will get the process “right.” Remember, this latest move comes after the government sought “deeper consultations with Indigenous peoples” in 2016.
Undoubtedly, conducting meaningful consultations with Indigenous communities is important. However, a trial-and-error approach is fraught with uncertainty and potential delays. But there’s another way. Instead of this flawed approach reliant on judicial interpretations, the government can pass legislation to better define what “duty to consult” actually means.
As noted by Tom Flanagan, professor emeritus of political science at the University of Calgary and senior fellow at the Fraser Institute specializing in Aboriginal issues, the government has the ability to clarify “duty to consult” but has yet to do so.
In the 2004 Haida Nation decision, the Supreme Court created the “duty to consult and accommodate” Indigenous groups regarding development projects (including pipelines) on their traditional territories.
For the rest of this column: https://calgaryherald.com/opinion/columnists/column-what-cant-ottawa-get-indigenous-consultation-right