Negotiation is central to the fulfillment of the duty to consult....
There is no one size fits all when it comes to fulfilling the duty to consult.
Honour of the Crown and Business Development
By Bruce McIvor
Last week I attended the National Aboriginal Business Opportunities Conference in Osoyoos, B.C. where I presented on the ‘Honour of the Crown and Business Development’. I discussed a series of dos and don’ts for Indigenous people seeking to maximize the duty to consult for economic development.
Here’s a summary of the main points from my presentation:
- Negotiation is central to the fulfillment of the duty to consult—consultation is not simply about information-sharing;
- While Indigenous people have to be careful not to frustrate consultation, they have the right to practice hard-nosed bargaining;
- Don’t forget the importance of strategic-level decisions—the duty to consult is about more than site-specific impacts;
- Aboriginal and treaty rights exist over large areas—be cautious about focusing on dots on a map;
- Aboriginal title has an economic component—consultation is about more than accommodating traditional harvesting practices;
- There is growing support for the position that the numbered treaties were about sharing the land and resources—not simply cede, release and surrender;
- Don’t let the debate about whether or not there is an Indigenous veto detract from the fulfillment of the Crown’s constitutional obligations;
- Insist on good faith bargaining;
- Be cautious about taking inflexible positions;
- Don’t let an environmental assessment get in the way of, or be used as a substitute for, the Crown’s fulfilment of its constitutional obligations; and
- Insist on respect for established Aboriginal rights and treaty rights, i.e. don’t let the Crown treat them like unrecognized rights.
In sum, when engaging in consultation with government or companies, First Nations should first take a step back and evaluate their specific circumstances and the particulars of the proposed project or decision. There is no one size fits all when it comes to fulfilling the duty to consult. By avoiding missteps and working to ensure that the Crown fulfills its legal obligations, a First Nation can better position itself to maximize available economic opportunities.
Bruce McIvor is principal of First Peoples Law Corporation.
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