The Stories We Tell: Site-C, Treaty 8, and the Duty to Consult and Accommodate

AuthorRachel Gutman
PositionRecently completed her JD at the University of Victoria
Pages3-27
APPEAL VOLUME 23
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3
ARTICLE
THE STORIES WE TELL: SITEC, TREATY 8,
AND THE DUTY TO CONSULT AND
ACCOMMODATE
Rachel Gutman *
CITED: (2018) 23 Appeal 3
INTRODUCTION...................................................4
I. SECTION 351 INFRINGEMENT AND THE DUTY TO CONSULT .....7
A. Aboriginal and Treaty Rights and Establishing Proof .....................7
B. Sparrow Justication Test and the Duty to Consult and Accommodate .......8
II. PROPHET RIVER AND ITS INTERPRETATION OF TREATY 8 .........12
A. Site-C and the Scope of the Crown’s Duty to Consult ...................12
B. e Prophet River Ruling and Its Interpretation of Treaty 8...............14
C. Implications of the Ruling in Prophet River...........................18
III. EXPANDING THE DUTY TO CONSULT AND ACCOMMODATE:
MOVING FROM A HAIDA TO SPARROW CONSULTATION
FRAMEWORK ..................................................18
A. “As Long as the Sun Shall Rise and the River Shall Flow”: Treaty Promises
andSearching for Common Intent..................................19
B. Understanding Treaty Rights as Limitations on Crown Sovereignty .........22
C. From Haida to Sparrow: Expanding the Duty to Consult and Accommodate..24
CONCLUSION ....................................................26
* Rachel Gutman recently comp leted her JD at the University of V ictoria. She thanks Professo r
John Borrows (Universit y of Victoria, Faculty of Law) for his ad vice and assistance with an initial
draft of this paper—and th e Editorial Board of Appeal for their revisions to that d raft. The
opinions expressed in th is paper are those of the author alone.
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APPEAL VOLUME 23
“e truth about stories is t hat’s all we are.”
omas King,  e Truth About Stories1
INTRODUCTION
e Dane-zaa have live d on their traditional territories, the Dane- zaa-nané (“the people’s
land”), since t ime immemorial.2 e ter ritory extends from the lands e ast of the Rocky
Mountains in what is now A lberta to the Peace River Valley in what is now northe astern
British Columbia and northwester n Alberta.3 e Dane-z aa creation story describes the
unfolding of time and space and begins with an enormous b ody of water covering the
world. e creator, Sky Keeper, draws a cross on the water as a way of establishing the
four directions, and then sends each of the anima ls beneath the water’s surface to bring
back earth. From the ea rth brought back under the nail s of Muskrat, Sky Keeper tells the
land to grow, until it eventually becomes so large that it can support both humans and
animals.4 e stories of archeologists and geologists also tell a para llel story of creation
that place the Dane- zaa on the Dane-zaa-nané territory at a t ime beyond memory, when
ice sheets covering most of what is now ca lled Canada began to melt a nd recede into lakes
and rivers, roughly 10,500 years a go.5
e connection of the Dane-za a to the land extends beyond magn itude of time. e
Dane-zaa creat ion story, and other stories passed down over history represent lega l orders
governing the relationship be tween the Dane-zaa and other liv ing and non-living beings
within their territor y. While these leg al traditions may have ancient roots, the laws of t he
Dane-za a and other Indigenous pe oples6 are not relegated to the past.7 Indigenous legal
orders pre-exist and su rvive the arrival of Europe ans and declarations of Crown sovereig nty;
and today, Canada is a lega lly pluralistic state, encompassing civ il law, common law, and
Indigenous legal tradition s.8 As such, the laws of Indigenous p eoples remain relevant to
all Canadians.9
Despite the pre-existence and c ontinuation of Indigenous legal orders, the Crown in rig ht of
Canada and t he Canadian common law court s tell a very dierent story of the relat ionship
between the Dane- zaa and the Dane-zaa-na né territory than conveyed by the creation story
described above. e predominanc e of the Crown’s perspective in common law jurisprudence
has brought drast ic changes to the land and way of life of the Dane- zaa people.
1 Thom as King, The Truth About Stories: A Native Narrative, 1st ed (Toronto: House of Anasi Press ,
2003) at 1.
2 Robin R idington & Jillian Ridington, Where Ha ppiness Dwells: A History of the Dane -Zaa First
Nations (Vancouver: University of Br itish Columbia Press, 2013) at 3.
3 Ibid.
4 Ibid a t 11.
5 Ibid at 68.
6 This pa per will shift between “Aborig inal,” “Indigenous,” and “First Na tion” depending on
context. “Aboriginal peop les” is a colonial legal term referr ing to the “Indian, Inuit and Métis
peoples of Canada,” se e section 35(2) of the Constitution Act, 1982, infra note 15. This paper
will use the term “Aboriginal” whe n referring to constitutional right s or colonial laws or
when quoting from jurispr udence. “Indigenous,” on the other h and, is a term used by many
communities to dene themse lves. “Indigenous law” refer s to the legal orders and traditions of
Indigenous peoples . This paper will use the term “Indi genous” where it is inappropriate to ref er
to Indigenous peoples o r law through the lens of Canadian colonial l aw; see Gordon Christie,
“‘Obligations’, Decolonizati on and Indigenous Rights to Governan ce” (2014) 27 Can JL & Jur
259 at note 1. Finally, this paper will use the term “First N ation” when referring to the Treaty 8
Nations who refer themselves as First Nations.
7 Joh n Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 10.
8 Mitchell v MN R, 2001 SCC 33 at para 10.
9 Borrows, supra note 7 at 10.

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