- Category: news
- Created: Wednesday, 16 October 2013 13:35
- Published: Wednesday, 16 October 2013 13:35
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Indigenous peoples have endured an accumulated history of denial of their rights and title
VANCOUVER, BC, Oct 15, 2013/ Troy Media/ – When it comes to upholding the honour of the Crown, there is no clean slate. As much as governments may wish otherwise, Indigenous peoples throughout Canada continue to demand recognition of, and redress for, past wrongs. Whether the duty to consult applies to past, existing and ongoing infringements is one of the most important outstanding questions in Aboriginal law.
Across Canada, Indigenous peoples endure the accumulated history of denial of their rights and title. For hundreds of years mines were dug, dams built, roads pushed through without serious consideration of how Aboriginal rights, title and treaty rights were affected. Following the Supreme Court’s 2004 Haida decision, Indigenous peoples began to consider whether the duty to consult and accommodate might open the door for addressing these past, existing and ongoing failures to consult and accommodate.
For some, the Supreme Court of Canada’s 2010 Rio Tinto decision appeared to slam shut that door. The decision can and has been read to exclude past, existing and ongoing infringements from the duty to consult and accommodate. But this is likely a misreading of the decision.
There are three main aspects to the duty to consult under Canadian law: when does it arise, what must consultation include, and how in depth should consultation be.
The Supreme Court in Rio Tinto was focused on the first question – when does the duty to consult arise? The particular facts involved a business contract to purchase electricity generated through a dam and reservoir that had been in operation for decades. The Supreme Court concluded that the contract on its own did not have any new effect on Aboriginal title and rights. Therefore, in that case, the government’s duty to consult and accommodate never arose.
But the Court in Rio Tinto left open two important issues. First, the Court left for another day the question of whether a continuing and ongoing infringement of Aboriginal rights, title or Treaty rights might trigger the duty to consult. That was not the question before the Court and the Court specifically declined to answer it.
Second, the Court indicated that if a government decision did adversely affect Aboriginal rights so as to trigger the duty to consult, then a prior or continuing breach of the duty to consult might be part of consultation and accommodation discussions.
It is appropriate to acknowledge that the wrongs of colonization are written on the lands of the Indigenous peoples of Canada. Indigenous people witness and endure them on a daily basis. Whether the duty to consult and accommodate is capable of at least partly addressing these wrongs remains an open question.
Bruce McIvor is Principal of First Peoples Law Corporation.