Issues associated with the implementation of the duty to consult and accommodate aboriginal peoples: threatening the goals of reconciliation and meaningful consultation.
Over time, Canadians have become more familiar with the unsettling history of Canada's Aboriginal peoples and their relationship with the federal and provincial governments. (1) While original interactions between Aboriginal peoples and the Crown were largely based upon co-operation, respect, and friendship, it was not long before the mutually beneficial, nation-to-nation relationship deteriorated into one largely characterized by colonial oppression, dispossession, and extreme marginalization. Any manifestations and/or expressions of Aboriginal rights, sovereignty, and self-government were significantly diminished as the Crown unilaterally asserted its own sovereignty.
The constitutional reform adopted in 1982, recognizing and affirming Aboriginal and treaty rights within subsection 35(1) of the Constitution Act, 198, (2) sought to put an end to this colonial narrative. Shortly after this development, Canadian courts, and the Supreme Court of Canada (SCC) in particular, proceeded to release several monumental decisions pertaining to the "existing" rights of Aboriginal peoples in relation to lands and resources.
However, in 2004, the SCC released Haida Nation v British Columbia (Minister of Forests). (3) Haida was the first in a series of judicial decisions marking a shift from a focus on "static constitutional rights" (whether or not a particular interest and/or activity could be recognized as an existing Aboriginal right within subsection 35(1)) to "a dynamic proceduralism" (4)--a new legal order that allows for the opportunity to recognize and protect asserted Aboriginal rights and interests from unilateral Crown action, even before they are proven to exist in a court of law. (5) This new legal order is known as the duty to consult--and potentially accommodate--Aboriginal peoples' claims and interests. While early expressions of the duty to consult can be found in pre-Haida jurisprudence, (6) these expressions were in the more limited context of rules regarding infringement of established Aboriginal rights. (7) It was not until Haida that the SCC explicitly enunciated the duty's foundational principles and outlined a framework for consultation activity.
On its face, the duty to consult appears to be a positive legal development outlining an optimistic vision for the future of Crown-Aboriginal relations. A legal doctrine now exists that prevents government from "cavalierly run[ning] roughshod over Aboriginal interests". (8) In the words of Justice
Tysoe of the British Columbia Supreme Court, the duty to consult is a "constitutional prerequisite" that must be satisfied in order for any Crown action and/or decision potentially impacting Aboriginal claims to be valid. (9) Not only does the duty allow for the protection of unproven Aboriginal rights and interests from Crown action, but it does so through a procedural framework that encourages dialogue and meaningful negotiation between the Crown and Aboriginal peoples. In fact, the duty to consult was created by the SCC with the hope that it would be able to fulfill the ambitious goal of advancing the potential for reconciliation between the Crown and Aboriginal peoples, by facilitating negotiation and allowing them to have a meaningful role and voice in decision making with respect to activities that might affect their present and future rights and interests. (10)
While the goals and ambitions supporting the duty are inspiring and, theoretically, have the potential to be realized, this raises the following question: are these goals being realized in practice ? More specifically, what are the practical implications associated with the implementation of the consultation process, and how do those implications affect the initial vision of the duty to consult enunciated by the SCC in Haida? This paper will suggest that the practical reality surrounding the duty to consult appears to imply that these goals and objectives are threatened and/or challenged by issues associated with the implementation of this duty and by its operation in practice. This paper will identify and discuss three "areas of risk" that pose a threat to the realization of both meaningful consultation and the ultimate goal of reconciliation; these areas are delegation, capacity (resourcing consultation), and cumulative effects of consultation.
The Three Areas of risk Explained
The first area of risk that will be examined is that of delegation (see Part III). Over the last decade or so there has been an identifiable trend by both federal and provincial governments of delegating ever more responsibility and jurisdiction to lower levels of government and government departments. In the context of the duty to consult, while delegation does carry with it certain benefits, it also generates challenging issues. Delegation can result in the deterioration of the nation-to-nation relationship between the Crown and Aboriginal peoples, which the duty to consult was meant to repair; it can result in a reduction in the potential scope of consultation and accommodations that can be made with whomever may be charged with fulfilling the duty; and, lastly, delegation can cause confusion as to who carries the obligation to consult in the first place (this is a current issue in the context of municipalities, as will be discussed later in the paper).
The second area of risk pertains to resourcing (including funding) the consultation process (see Part IV). The act of consulting requires capacity and resources, both financial and human--something that, oftentimes, First Nation communities lack. While there is some case law to support an obligation to fund consultation, and while there is increasing recognition at the political level that funding is a necessary requirement for the duty to be fulfilled, at present there is no clear legal obligation on the part of the Crown to fund the consultation process, and programs that do exist to assist with consultation capacity are usually inadequate. As a result, First Nation communities who choose to participate in the consultation process are left with the onerous task of resourcing their own participation, which all too often carries significant financial and social costs.
The third, and arguably most concerning, area of risk is associated with the cumulative effects of consultation: the risk that, over time, Aboriginal participation in consultation and accommodation processes will lead to the erosion of the Aboriginal and treaty rights that are exercised on the land (see Part V).
While the duty to consult may have virtues, a closer look at the mechanics of the duty reveals a significant power imbalance implicit within the duty's framework: there is no veto power on the part of First Nations, there is no obligation to reach an agreement, and the duty does not preclude hard bargaining on the part of the Crown. Thus, First Nations are at a clear disadvantage even before any consultation and negotiation takes place. What this means is that, more often than not, it will be First Nations who are obligated to make the most significant compromises: more consultations will lead to more development, more development will lead to a reduced land base, and a reduced land base will result in a reduced ability for First Nations to exercise their traditional rights and practices that are tied to their land. The result is that, over time, First Nations will be consulting and accommodating themselves out of their rights.
These issues carry the risk that the effectiveness and value of the duty to consult with respect to the preservation and promotion of Aboriginal rights, interests, and decision-making power and authority will be substantially diminished. In other words, these areas of risk reduce the meaningfulness of the consultation process and undermine the potential for reconciliation between the Crown and Canada's Aboriginal peoples. It is important to identify the slippery slopes so that precautions can be taken to ensure that the duty to consult is preserved as a tool to protect Aboriginal rights and interests, rather than contribute to their destruction.
Before delving into a discussion of these three areas of risk and an illustration of how they serve to challenge the aspirational vision that formed the impetus for the creation of the duty to consult, it is useful to understand on a deeper level what that initial vision was, and the objectives that it was hoped the duty would achieve. Part II will therefore discuss the articulation of this initial version by the SCC in Haida and the elaboration of the principles enunciated in subsequent jurisprudence.
THE GOALS BEHIND THE DUTY TO CONSULT AND THE ESSENCE OF "MEANINGFUL" CONSULTATION
The foundational principles of the modern duty-to-consult doctrine arise out of what is commonly referred to as the Haida Nation trilogy--a series of cases decided in 2004 and 2005 consisting of Haida Nation, Taku River, (11) and Mikisew Cree. (12)
The duty to consult and accommodate is triggered "when the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it". (13) The content and scope of the duty vary with the circumstances and lie along a spectrum. When the breach is minor, the duty may be no more than a duty to discuss important decisions that will be taken with respect to Aboriginal interests. (14) When the breach is significant, "deep consultation, aimed at finding a satisfactory interim solution, may be required." (15) In all cases, however, consultation must be meaningful and done in good faith, with the intention of substantially addressing the concerns of the affected First Nation. (16) The duty to consult also applies in the context of treaty rights, although the content and scope of consultation may be on the lower end of the spectrum, as a treaty itself is the product of negotiation. (17)
It is therefore...
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