Prof. Dwight Newman debunks myths about the "duty to consult" and finds opportunities for government, Aboriginal peoples and industry to work together

OTTAWA, May 8, 2014 – Few Aboriginal issues have been as greatly misunderstood as the constitutional "duty to consult" doctrine.

Some feel the principle that requires governments to consult with Aboriginal groups before implementing decisions that might affect them gives First Nations a veto power over government policies. Others contend that the doctrine is meaningless because governments have the power to go ahead and approve projects anyways. These interpretations are not only incorrect, they also hold these groups back from capitalizing on Canada's potential, according to a new report from the Macdonald-Laurier Institute titled "The Rule and the Role of Law: The duty to consult, Aboriginal communities, and the Canadian natural resource sector".

The report, by Canada Research Chair in Indigenous Rights in Constitutional and International law Dwight Newman, argues that governments, Aboriginals and businesses should use the doctrine as a mechanism to work collaboratively on natural resource development.

"Canada's massive resource potential, and its potential to contribute to Aboriginal Canadians, should not be squandered by allowing loud voices to dominate discussions while trading in misunderstandings", he writes.

One of the main issues plaguing the duty to consult, which first came into effect as a result of a Supreme Court decision a decade ago, is the confusion over how it affects policy decisions. Many feel that Aboriginal groups will wield a narrow interpretation of the case law built up around the doctrine to consistently block resource development, highlighting disputes such as anti-fracking protests in New Brunswick or legal confrontations over the Ring of Fire in Ontario. That's despite the fact that many Aboriginals, such as members of the Fort McKay First Nation in Alberta, have expressed a desire to participate in resource development as long as their interests are represented.

Newman argues that governments, Aboriginals and businesses should use the doctrine as a "lever" that causes them "to come to an agreement over resource projects that benefit all parties". This means interpreting the duty to consult in less technical ways. History has shown that narrow interpretations of the doctrine aren't particularly beneficial, he says. "Those who attempt to draw upon the spirit of the duty to consult may well attain better outcomes than those who attempt to follow the letter of the law", Newman writes.

The courts also have a responsibility for ensuring that the doctrine functions smoothly, Newman argues. He believes that judges need to be very cautious in expanding the duty to consult because that will limit governments' flexibility in implementing policies, such as approving energy pipelines, that affect Aboriginal communities. He also cautions that extending the duty to consult to drafting legislation, especially at the federal level with more than 600 First Nations, Inuit and Métis communities potentially impacted, would seriously complicate law making and have unintended consequences that may actually work counter to its purpose of improving life for Aboriginal Canadians.

A proper understanding of the duty to consult has grown in importance since Shawn Atleo's resignation as the chief of the Assembly of First Nations last week. Divisions within Aboriginal communities, such as the varying opinions on education issues within the AFN that caused him to step down, will potentially make it more difficult for governments to carry out their duty to consult in the future.

"The prospect of the kind of less coherent approach to consultation urged by more radical voices carries serious risks of blocking important, badly needed reforms that are in the interests of First Nations children", wrote Newman in an op-ed published in the Globe and Mail earlier this week.

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Dwight Newman is the Canada Research Chair in Indigenous Rights in Constitutional and International law at the University of Saskatchewan. His new book, Revisiting the Duty to Consult Aboriginal Peoples, is set to be released by Purich Publishing in May.

The Macdonald-Laurier Institute is the only non-partisan, independent national public policy think tank in Ottawa focusing on the full range of issues that fall under the jurisdiction of the federal government.

For more information, please contact Mark Brownlee, communications manager, at 613-482-8327 x. 105 or email at mark.brownlee@macdonaldlaurier.ca. On Twitter @MLInstitute