From Consultation to Consent: Squaring the Circle?

By Coyle, Michael | University of New Brunswick Law Journal, January 2016 | Go to article overview

From Consultation to Consent: Squaring the Circle?


Coyle, Michael, University of New Brunswick Law Journal


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. …

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