How to Fulfil the Duty to Consult

Bruce McIvor

As governments, industry and First Nations continue to disagree on what it takes to fulfil the duty to consult, resource development projects stall and public frustration grows. This is despite that for over ten years, and culminating in the recent Tsilhqot’in decision, the courts have established and elaborated on the principles underpinning the duty to consult.

If governments, industry and First Nations are going to trust each other and work together we need to dispel common misconceptions about the duty to consult, agree on basic requirements and outline a path to reconciliation.

Duty to Consult is Not Public Consultation

First, the duty to consult is qualitatively different than consultation with the general public. It is a constitutional duty owed solely to Aboriginal people. It exists because Indigenous peoples with their own laws and customs controlled the lands and waters now called Canada before non-Indigenous people arrived. European states bent on colonization recognized that based on their own laws they could not simply ignore the fact of the original inhabitants—Indigenous and non-Indigenous interests had to be reconciled. The duty to consult is part of this ongoing national project.

Minimum Requirements

While specific obligations vary with the circumstances, the courts have identified minimum requirements for meaningful consultation with First Nations. Consultation must begin at the earliest stages of planning and cannot be postponed. Governments must consult in good faith with an honest intention of substantially addressing Indigenous peoples' concerns. Government officials must have the required powers to change the project because consultation without the possibility of accommodation is meaningless.

Governments must listen carefully to concerns and work to minimize adverse effects on Aboriginal rights and treaty rights. They should be open to abandoning or rejecting proposals. If there is a decision to proceed, governments should demonstrably integrate responses to Indigenous peoples' concerns into revised plans of action. If suggestions for changes to a project are rejected, an explanation is required.

As governments love to remind First Nations, there is no Aboriginal veto. This is likely the most misunderstood statement surrounding the duty to consult. The implication is that because there is no veto, ultimately governments can do what they want and First Nations cannot stop them. That line of thinking is incompatible with the requirements outlined above. It leads to distrust, frustration and litigation.

Importantly, consultation is not addition. You do not add up the number of meetings and comments to determine whether consultation has been adequate. Consultation must be more than an opportunity for Indigenous peoples to blow-off steam.

In sum, consultation requires sufficiently-mandated government officials to enter into good faith negotiations with Indigenous peoples based on flexible proposals, to carefully listen and respond to concerns, and to be open to changing their plans.

Consultation Plus

And then there are the projects that require more than consultation.

The consultation requirements described above apply to First Nations with Aboriginal rights not yet recognized by government. For First Nations with recognized rights, including treaty First Nations, governments may have to do more than consult. They may have to justify any infringement of those rights. This can be thought of as 'consultation plus.'

When justification is required, in addition to the duty to consult, governments must demonstrate that the project contributes to a compelling and substantial objective consistent with their fiduciary duty to Indigenous Peoples. This is much more than deciding the project is in the public interest. To meet the justification test, governments must demonstrate that the project is designed to minimally affect Aboriginal rights, and that the governments’ broader public goal in respect of the project advances the overarching objective of reconciliation.

Consent Based Reconciliation

No one suggests these requirements are not onerous. They should be, considering what is at stake—the overriding of constitutionally-protected rights, a protection intended to reconcile newcomers’ interests with those of the Indigenous peoples of Canada.

Of course, there is another path to reconciliation—it is based on consent.

Were governments to seriously seek Indigenous peoples' consent  they would likely find that in many cases there are respectful and mutually beneficial ways forward. Where no such path exists, it’s likely that the project could never have been justified in the first place.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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