Is the Duty to Consult Clear as Mud?

By Bruce McIvor

Industry and its supporters complain that the duty to consult and accommodate is a murky mess with the courts failing to provide clarity. If only, they lament, the rules of engagement were clear and stable.

Their complaints are out of touch with reality.

Over ten years ago the Supreme Court set down the principles underpinning the duty to consult in simple and clear language in Haida Nation. At the same time, and for the benefit of First Nations, governments and industry, the Court evaluated a specific consultation process in Taku River as an example of what was required to fulfil the duty to consult.

The Court’s subsequent decisions have simply clarified when the duty to consult applies. Ten years ago in Mikisew the Court explained when it applies to so-called historical treaties. Five years ago, in its last major duty to consult decisions, the Court extended the duty to consult to modern treaties (Beckman) and clarified when and how the duty to consult applies to administrative tribunals and existing infringements (Rio Tinto).

For more than a decade the Supreme Court’s requirements for meaningful consultation and accommodation have been clear, known and consistent.

In Haida Nation the Supreme Court described its task as "establishing a general framework for the duty to consult and accommodate." It was up to lower courts to “fill in the details."

The lower courts have done their work. With literally hundreds of duty to consult court decisions since Haida Nation, there is little room left on the canvas for anything new. The picture has been filled in, clarified and sharpened in detail over and over again.

Anyone still unsure when and how the duty to consult is intended to apply has not done their homework.

Importantly, First Nations have borne the disproportionate burden of clarifying the law around the duty to consult and accommodate. Faced with governments that ignore the Supreme Court’s clear directions, First Nations have been forced to expend their energy and limited resources on litigation to defend their Aboriginal title, rights and treaty rights. In court they are opposed by governments and companies with comparatively unlimited resources derived in large part from exploiting Indigenous lands.

The law of the duty to consult is clear and workable. Complaints from industry to the contrary smack of an underlying, different agenda. Similar to industry lobbyists' complaints of too much ‘red tape’, those who grumble that the law of the duty to consult has too much uncertainty likely mean there is just too much of the duty to consult.

Instead of blowing smoke in our eyes with complaints about a lack of clarity surrounding the duty to consult, industry and its sympathizers should be pressing governments to live up to the spirit and intent of their constitutional obligations to Indigenous Peoples.

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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