Section 35 of the Canadian Constitution states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. In an attempt to provide greater clarity the constitution defines “treaty rights” as rights that now exist by way of “land claim agreements or may be so acquired”. It is through this constitutional provision that the duty to consult has been constructed by Canadian courts. The department of Indigenous and Northern Affairs Canada estimates that the legal duty to consult is triggered for some provinces over 100,000 times per year and for the federal government over 5,000 times per year.
Over the past decade, the Supreme Court of Canada has attempted to define how provincial and federal governments are to put into practice their duty to consult with First Nations. They have done this through various judgments including: Haida Nation v. British Columbia, Taku River Tlingit First Nation v. British Columbia, Mikisew Cree First Nation v. Canada, and Tsilhqot’in Nation v. Canada. In an effort to address the Crown’s legal obligation to consult with aboriginal groups, provinces have created consultation guides for their departments and project proponents. However, these guidelines are vastly different depending on which jurisdiction a project is in. This creates a patchwork of consultation policies across the country.
There are some principles that all jurisdictions share, such as the Crown’s taking responsibility for the duty to consult; and yet there are other principles that differ dramatically depending on the province in which a project is located. For example, British Columbia, Manitoba, and Quebec are the only jurisdictions that do not state in their policies that aboriginal communities are required to participate in the consultation process. British Columbia, Manitoba, Ontario, and Quebec also all still have “draft” aboriginal consultation policies. In the case of Ontario, their policy has been in draft form since 2006. The consultation process could be improved for project proponents and First Nation communities across the country.
Recommendations