From consultation to consent: squaring the circle?

Author:Coyle, Michael
 
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ABSTRACT

This article analyses the apparent tensions between the current Canadian law on the Crown's duty to consult with Indigenous peoples, which generally refuses an Indigenous veto over proposed land uses in traditional lands, and the principle of prior informed indigenous consent, as enshrined in the recent U.N. Declaration of the Rights of Indigenous Peoples. The tension between these competing visions of the rights of Indigenous communities has given rise not just to theoretical legal conflicts, but also to destructive conflicts on the ground. The author argues that attention to the dialogic framework within which Indigenous concerns are addressed during consultations, and particularly to indigenous peoples' participation in developing that framework, is key to managing those conflicts effectively and to reconciling current Canadian law and practice with the principles of the U.N. Declaration. Next it examines a question on which Canadian consultation law is largely silent: the allocation of benefits derived from developments on Indigenous traditional lands. Finally, the analysis turns to the principle of free, prior and informed consent to the substance of proposed developments on traditional lands. The article concludes that the objective of obtaining such consent is a salutary one that has been wrongly marginalized in both the jurisprudence and Canadian government practice.

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The food we get from the land, which includes fish, moose, caribou, geese, ducks and other fowl, provides us with much-needed nutrients and protein. This food from the land also serves a central role in our culture. It is brought to our elders for distribution amongst our people ... Anything that may disrupt this fragile system, our sacred relationship with and stewardship of the land, the safety of our drinking water, or our ability to hunt, fish and trap is of great concern to our people, who live in circumstances best described as marginal.* 1 I stand by the fact that the land I'm in, on now is our land. I believe God put us there. God have us a language, the animals to live off and we just don't want to see development on that area...As a treaty partner I expect to be treated as a partner, not, not where one is superior than us. (2) The past 25 years have been an exciting and challenging time for all who are concerned about the significance of Indigenous voices in relation to resource developments on the traditional lands of Indigenous peoples in Canada. Over the previous century, those voices had been largely unheeded in decision-making processes about the future uses of those traditional lands. One major exception to this trend was the negotiation of 24 modern treaties over the past 40 years in northern Canada and British Columbia; treaties which provided compensation for the use of Aboriginal title lands and offered the new Indigenous treaty partners detailed processes for participating in environmental and development decisions affecting their traditional lands. (3) In parallel to the development of modern treaties, a series of decisions by the Supreme Court of Canada confirmed that Aboriginal groups are entitled to be consulted wherever provincial or federal governments propose to make decisions about land use that would infringe upon their constitutionally-protected Aboriginal rights, treaty rights, or title rights. (4)

It was not until 2004 that the Supreme Court of Canada set out in detail the nature of the consultation process required of the provincial and federal governments when they propose to make a decision that may interfere with Aboriginal rights. In Haida Nation (5), the Court ruled that the duty of federal and provincial governments to consult Indigenous communities extends to situations where the existence of section 35 rights has not yet been adjudicated, so long as the communities can show a prima facie claim that their rights would be affected by the proposed decision. This last point is particularly significant given the length of time it will take to resolve individual section 35 claims across the country. The duty to consult derives from the principle of the "honour of the Crown", which requires the Crown, in reconciling its sovereignty claims with those of Aboriginal peoples, to act with integrity in all of its dealings with Aboriginal peoples, from treaty-making to the resolution of Aboriginal claims. (6) In Haida Nation, the Court ruled that for federal and provincial governments to completely ignore Aboriginal claims while making decisions to exploit traditional Aboriginal lands would be to act dishonourably, or in violation of their duty. (7)

In every case where its duty is triggered, Canadian law now requires the Crown to consult in good faith with the Aboriginal group affected and with the intention of substantially addressing their concerns. The extent of the required consultation process, and the degree to which decision-makers must accommodate Indigenous concerns, depends on the strength of the Aboriginal group's claim to section 35 rights and the extent of the proposed interference with those rights. Accordingly, while the duty to engage in some consultation with Aboriginal peoples is triggered at a relatively low threshold, the extent of the consultation process and the burden on the Crown to address Aboriginal concerns will vary from case to case. Building on its earlier jurisprudence interpreting section 35, the Court in Haida Nation confirmed that provincial and federal agencies must tailor each consultation process in proportion to the seriousness of the potential impact of their decision on existing Aboriginal or treaty (8) rights. While both parties to the consultation must always engage with each other in good faith, the extent of the consultation process required will vary from mere notice of the proposed decision and discussion to, in the most serious cases of potential infringement, a formal process for receiving submissions from the Aboriginal group and the provision of written reasons by the Crown to demonstrate that those submissions were taken into account before a final decision was reached. (9) Although the Court affirmed that in general Aboriginal consent is not a prerequisite for the Crown to proceed with its final decision, the Supreme Court's development and clarification of the duty to consult over the past 25 years has given Indigenous communities a dramatic new lever to influence land use decisions that will affect them.

Nonetheless, gaps remain in the guidance offered by the Court as to the process that the parties should follow when the duty to consult arises. In part, a certain degree of vagueness necessarily follows from the principle that consultation should be more profound when a proposal threatens to have serious impacts and the Indigenous rights claim is strong. (10) Accordingly, no detailed template for consultation will serve in every case. Second, the Supreme Court of Canada has made clear that negotiation processes should be developed by the parties themselves,

\\\ and that federal and provincial governments should attend to the mandates of any regulatory schemes that might aid them in fulfilling their procedural duties. (11) However, it has become clear in recent years that more direction is required to avoid continuing conflicts over the adequacy of consultation in individual cases. At present, the Crown and Indigenous communities are required to listen to and consider each other's views in good faith. But if, in good faith, they seriously disagree about the strength of the community's rights claim or about the severity of a project's impacts, in a real sense the consultation process will fail. It will fail as a mechanism for consensus-building, it will fail as a reliable vehicle for facilitating decisions about resources on traditional lands, and it will fail as a process aimed at helping to achieve reconciliation between Indigenous peoples and the state.

Closely related to this concern about the capacity of existing consultation requirements to promote consensus, there appears to be a divergence between domestic Canadian law and emerging international law on whether a state must obtain the consent of Indigenous peoples before making decisions that would affect their traditional lands. Most recently enshrined in the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP), (12) the standard of free, prior and informed consent seems more stringent than the general Canadian requirement of consultation and possible accommodation of Indigenous concerns. Indeed, the apparent difference between the two standards was one of the major reasons cited by the Canadian government when it voted against the Declaration in 2007 and when it later qualified its acceptance of the document in 2010. (13) Although the UNDRIP has been endorsed by 147 nations, it is not a binding statement of international law. Nevertheless, the recently-elected Prime Minister of Canada has declared that his government will implement its provisions. (14) Further, as a statement of internationally-accepted norms, the UNDRIP is a document that may have persuasive value for courts applying the Canadian law on consulting Aboriginal peoples. (15) Indeed, a number of international business organizations have already decided to adopt the standard of free, prior and informed consent in their dealings with Indigenous peoples. (16)

These developments raise the question of whether the current Canadian law governing the duty to consult Indigenous communities is inconsistent with prevailing international norms. The growing international emphasis on the principle that the consent of Indigenous peoples should be obtained prior to developments on their traditional lands cannot but increase the focus on the ability of current Canadian consultation processes to promote consensus-building between the parties. In this context, our analysis will focus first on two aspects of...

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