Monday, September 22, 2014
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Don Cayo: The ‘duty to consult’ is evident but what it means is not

By Don Cayo, Vancouver Sun columnist

In a perfect world, companies and governments and First Nations would sit down when big projects are being contemplated and they would strike deals that work for everybody.

And indeed, this sometimes happens, and many First Nations are beginning to prosper as a result. But in our imperfect world, it often does not work out so well, and many proposals — the Chilcotin’s moribund Prosperity Mine springs to mind — become mired in acrimony and bound up in red tape.

In a series of rulings spanning the better part of two decades, the Supreme Court of Canada has been clarifying — or, some would say, complicating or even creating — the issue. Through a series of decisions, it began to articulate what it calls a constitutional “duty to consult” First Nations when their lands and their livelihoods are to be affected by development.

But many questions remain.

Consider the flap over this week’s report by James Anaya, the UN’s special rapporteur on the rights of indigenous people.

The report, citing a UN resolution on international human rights, says, “In accordance with the Canadian constitution and relevant international human rights standards, as a general rule resource extraction should not occur on lands subject to aboriginal claims without adequate consultations with, and the free, prior and informed consent of, the indigenous peoples concerned.”

This seems clear. However, Anaya also told my colleague, Peter O’Neil, it doesn’t mean there should be an Aboriginal veto on resource projects — perhaps the only aspect of this issue he and the federal government agree on.

But what else — aside from giving First Nations a veto — can an obligation to obtain “free, prior and informed consent” possibly mean? And is there a specific definition of “adequate” consultations, or is this just an invitation to all sides to complain the process has fallen short unless or until they win?

The Supreme Court isn’t much help. It, too, agrees the obligation is not a veto, but it hasn’t spelled out a concrete definition. So it is clear that there is a bar — governments and companies can’t just barge in and do what they want with little or no discussion. But there is no way to foretell just how high this bar is, or when it is cleared or not cleared.

Nor is it obvious just who to consult. Is it just chiefs? (If so, which chiefs, as former AFN head Shawn Atleo might ask after being ousted for speaking in favour of the proposed First Nations education act on behalf of the people he was elected to represent.) Or do other civil society groups, political rivals, and/or all citizens also have a say? What is the test to determine when consensus is reached — the agreement of 50 per cent plus one, or unanimity, or some specific level in between? What are the options when consensus fails?

The Supreme Court has loosely tied the intensity of the required consultation to the strength of a First Nation’s claim to the land in question. But when, as in B.C., most land claims are unsettled, who can know their strength? Or is every project that draws a single nay — or some other specified number of nays — to be put on hold while interminable land claims negotiations play out?

What happens when a First Nation won’t come to the table to consult? Does this action give them a de facto veto, or do they lose the right to influence the outcome?

And what happens when — as is the case with the Jumbo Glacier Resort — there are over-lapping claims, with one First Nation on board with the developers and another stoutly opposed?

Over-lapping or side-by-side claims are a big factor in the continuing Northern Gateway pipeline debate. The proponent, Enbridge, claimed as long as two years ago that it had signed equity agreements with 60 per cent of the First Nations whose traditional territories will be impacted. Yet the company is being hammered relentlessly for inadequate consultation, and the federal government has been repeatedly warned it will face further legal challenges if it bulldozes ahead and authorizes the project.

The doctrine of “duty to consult” is unquestionably a boon for First Nations and the Canadian economy when it leads to productive partnerships with fairly distributed benefits. But as it stands — ill-defined and open to irreconcilable interpretations — it risks creating as many problems as it solves.

Whatever Trevor

Dis is Trevor.

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