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brian lee crowley

Duty to consult and accommodate. Remember those five words. Properly applied, they could help usher in a new era of co-operation between First Nations and natural resource development. Ignored or disregarded by governments, or used to raise unrealistic expectations of unlimited aboriginal power, 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 British Columbia government decision to transfer some tree licences to a forestry company. The Haida First Nation sought an injunction to stop the transfer, because it believed it violated their aboriginal rights. The B.C. 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 remains 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, no matter how responsive governments are, a minority view has emerged that aboriginal people may decide unilaterally whether they have been adequately consulted.

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 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 argued that consultation with the AFN didn't count, and would have to take place with each one of the more than 600 First Nations in Canada.

One can hardly blame aboriginal communities and their legal advisers if they milk this new legal tool for all it's worth. But Dwight Newman, a Canada Research Chair at the University of Saskatchewan, argues in a new paper for the Macdonald-Laurier Institute that by ramping up expectations of what the duty requires, we run the risk of an aboriginal backlash when an over-hyped 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.

Mr. Newman makes the case that 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. He underlines, though, that the mere fact an aboriginal community may not like a project – the Northern Gateway pipeline, say – does not prove that their aboriginal or treaty rights are threatened.

The Supreme Court created a process whereby governments and aboriginals are 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, 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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