Crowley in the Globe: Future resource development demands understanding of ‘duty to consult’ – MacDonald Laurier
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.
