FNS: Advancing an Indigenous Framework for Consultation and Accommodation in BC – Report
Press Release
Introduction ONE YEAR (ALMOST TO THE DAY) after the Haida case was decided,1 the Supreme Court of Canada (SCC) in the Mikisew case declared that the concept of reconciliation is the “fundamental objective” of the modern law of Aboriginal and Treaty rights:
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people’s concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies.
A relatively recent principle of modern aboriginal law, active on the ground and in the court room, is the Crown’s duty to consult and accommodate: Where a First Nation can show evidence that establishes a prima facie case for Aboriginal title or rights, then before the Crown can authorize any interference with the Aboriginal title land or resources the Crown must first consult with the rights and title holders and strive to reach an agreement with them about the scope of any Crown-authorized interference with the title lands or resources. The Crown’s duty to consult is also triggered to address any potential interference with Treaty rights.
This Paper addresses the developing common law that describes, refines and explains the Crown’s duty to consult. The common law in this context refers to the law of the courts as expressed in decisions of the courts. It is built on precedent, and is distinguished from legislation or policy.
Most often, the first point of reference for the Crown’s duty to consult is the SCC’s decision in Haida. This case is an obvious reference point as it (along with the companion Taku case3 ) were the SCC’s first articulation of the Crown being honour bound to consult with Aboriginal people about proposed land and resource activities in their territories. This is often called a ‘pre-proof’ duty meaning the Crown has the duty to consult now; it is not a duty that waits until a court makes an order declaring that Aboriginal rights exist and it’s not a duty that waits until treaties are concluded. No proof of section 35 rights is required to trigger the Crown’s honour or the duty to consult.
The duty as explained by the SCC is a mechanism that reins in Crown conduct. The SCC expected that how and for what purposes lands and resources in traditional territories can be used and should be managed is a subject of conversation, negotiation and ideally, agreement between the Crown (having asserted sovereignty) and the original inhabitants (the title and rights holders). All of this effort is driving towards one goal – and it is important to say that this is a shared goal – and that is to achieve reconciliation. Consultation and accommodation are legally (constitutionally) required steps, along the path to reconciliation.
IBF5
