Writing in the Globe and Mail, MLI Managing Director Brian Lee Crowley argues that governments' constitutional "duty to consult" Aboriginals is only going to grow in importance as more natural resource developments come up for debate, so we'd better make sure we understand what it means. The Globe ran an edited version of this column.

Brian Lee Crowley, May 16, 2014

Duty to consult and accommodate. Remember those five words. Properly applied they could help to usher in a new era of co-operation between First Nations and natural resource development, unlocking jobs and new wealth for all Canadians. Ignored or disregarded by governments or used to raise unrealistic expectations of unlimited Aboriginal power, on the other hand, they could herald a period of discord, mistrust and lost opportunity, including for Indigenous people.

The words themselves are drawn from a Supreme Court decision on a case regarding a decision by the British Columbia government to transfer some tree licences to a forestry company. The Haida First Nation went to court seeking an injunction to stop the transfer because they believed it violated their Aboriginal rights. The BC government claimed it had the traditional legal and constitutional authority to manage the province's natural resources as it deemed appropriate.

When the issue reached the Supreme Court neither party got what it wanted. Instead of confirming government power or transferring some or all of that power to Aboriginal peoples, the Court created the duty on governments to consult and accommodate Aboriginal interests when government decisions encroach on potential or established Aboriginal or Treaty rights.

Final decision-making power remained in government hands, but before a final decision can be reached, both sides are required to engage in good faith consultations and, if significant dislocations are anticipated, First Nations' concerns must be accommodated.

Predictably in the politically-charged atmosphere of Aboriginal rights, especially surrounding resource development, the duty to consult has been elevated by some Aboriginal leaders into a veto. No matter what the consultative process undertaken, no matter how responsive governments are, a minority view has emerged that Aboriginal people may decide unilaterally whether they have been adequately consulted. On this view, the duty to consult has morphed into a veto over anything that engages Aboriginal interests.

Readers who follow these things will have noticed the shift in the language used by indigenous people to claim their rights in the years since the Supreme Court's enunciation of the duty to consult doctrine. Whereas it used to be that the chief legal approach was to invoke treaty and Aboriginal rights, objections are increasingly framed in terms of inadequate or unacceptable consultation about what those rights entail.

Inadequate consultation was thus the battle cry of opponents of the education deal negotiated between the Harper government and the Assembly of First Nations .  While the AFN supported the bill, dissidents such as Manitoba Grand Chief Derek Nepiak, for instance, argued consultation with the AFN didn't count and would have to take place with each one of the over 600 First Nations in Canada.

All's fair in love and war, of course, and so one can hardly blame Aboriginal communities and their legal advisors if they milk this new legal tool for all it's worth. But as Dwight Newman, a Canada Research Chair at the University of Saskatchewan, argues in a new paper for my institute, by ramping up expectations of what the duty requires we run the risk of an Aboriginal backlash when an overhyped duty to consult turns out not to be the right of veto its advocates claim. Conversely, if the courts decide the duty is more extensive and unilateral than the Supreme Court envisaged, we can look forward to a long period of constant legal conflict as huge uncertainty causes natural resource development to grind to a halt.

Newman makes the case the Supreme Court was trying to create a balance in which governments retained the ultimate power to decide what is in the public interest, while at the same time requiring them to engage Aboriginal peoples to ensure their concerns are heard, understood and taken seriously.  Newman underlines, though, that the mere fact an Aboriginal community may not like a project—Northern Gateway, say— does not prove that their Aboriginal or treaty rights are engaged or threatened.

In other words, far from a unilateral indigenous veto over resource development and other changes, the Supreme Court created a process whereby governments and Aboriginals were both under an obligation to engage in good faith consultations over genuine Aboriginal interests.  The larger determination of what is in the public interest remains in the hands of elected governments. The courts, however, would presumably be the final arbiters of whether the consultations and accommodations were sufficient. Aboriginal opposition to development per se would not be evidence the consultation test had not been met.

That seems a reasonable balancing act, at least in theory. Now to see if we can make it work in practice.

Brian Lee Crowley (twitter.com/brianleecrowley) is the Managing Director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: www.macdonaldlaurier.ca.

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