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Globe editorial: The ‘duty to consult’ Indigenous Canadians, and its limits

Indigenous Canadian communities have unique rights under Section 35 of the Constitution. These protections, covering pre-existing rights and those acquired by treaty, are extensive – but some are also limited.

That's the takeaway from a pair of Supreme Court rulings released Wednesday. One considered the National Energy Board's approval of an oil and gas exploration project, over the objections of an Inuit community; the Court struck the project down. The other case looked at the NEB's approval of the Line 9 pipeline reversal in Ontario; the Court said that, even though an affected Indigenous community was opposed to the project, the regulator had properly consulted and properly approved it.

At issue in both cases is the Crown's "duty to consult." When a development – like a pipeline or an oil-exploration project – has an impact on an Indigenous community's rights, such as the right to hunt or fish on traditional native territory, they must be adequately consulted.

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"The duty to consult," wrote the Court, "is rooted in the need to avoid the impairment of asserted or recognized rights." For a consultation to pass constitutional muster, it must be real and substantial. It can't just be about collecting complaints and suggestions, and then ignoring them. The Indigenous community must be fully informed of the project's details and consequences, and given the opportunity to respond. Depending on the evidence, mitigation measures may have to be taken.

"The duty to consult," said the Court, "requires an informed and meaningful opportunity for dialogue with Indigenous groups whose rights may be impacted."

In one of the decisions released Wednesday, the Hamlet of Clyde River in Nunavut argued that a plan to undertake nearby oil and gas exploration, using offshore seismic testing, would harm local seals, polar bears and whales, which Inuit members of the community have a treaty right to hunt.

The National Energy Board approved the project, but Clyde River argued that approval was based on insufficient consultation. The project's backers held public meetings, but offered vague or incomplete answers about the possible harms to local marine life. They eventually filed a nearly 4,000-page document on the project's impacts – but didn't translate it into Inuktitut.

On Wednesday, the Supreme Court agreed with the Inuit community. It quashed the NEB's project authorization, describing the level of consultation as "inadequate." That doomed the project, because "the honour of the Crown requires a meaningful, good faith consultation process." That's not what the NEB offered.

"Any decision affecting Aboriginal or treaty rights made on the basis of inadequate consultation will not be in compliance with the duty to consult," said the Court.

But a decision affecting Indigenous rights based on adequate consultation will be in compliance with the constitutional duty to consult – and as a such, a project may be approved even if an Indigenous community is opposed.

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That's what happened in the other case before the Supreme Court. The Chippewas of the Thames First Nation argued that the Crown – the federal government – should have set up a separate consultation process to deal with the impact on their rights caused by the expansion of the Line 9 pipeline. They believed that the NEB process was insufficient.

The government, however, argued that the NEB can be empowered to act on its behalf – and the Court agreed. "The Crown is entitled to rely on the NEB's process to fulfill the duty to consult."

The Court also agreed that, though the NEB fell short in Clyde River, the Line 9 consultation was robust enough to satisfy the honour of the Crown. "In this case, in light of the scope of the project and the consultation process afforded to the Chippewas of the Thames by the NEB, the Crown's duty to consult and accommodate was fulfilled," wrote a unanimous court.

The bottom line in all of this is that the constitutional duty to consult means, as the words suggest, a legal obligation to confer honestly and fully with an affected native community, and even to make reasonable accommodations to avoid infringing on Indigenous rights. It's a powerful obligation. But it's not an Indigenous veto.

As the Court put it, "these cases demonstrate that the duty to consult has meaningful content, but that it is limited in scope."

That statement about Canadian law is one of the reasons to be concerned about the nature of Ottawa's acceptance of the United Nations Declaration of the Rights of Indigenous Peoples. Right now, the Crown has a legal duty to consult, but there's no requirement for Indigenous consent. The language of UNDRIP, however, appears to make consent a legal obligation, which implies a veto. No wonder the Trudeau government increasingly sounds like it wants to embrace UNDRIP more in principle than in law.

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