How duty to consult affects BC resource industries – The Daily Courier
The question of aboriginal consultation and accommodation has probably kept many people in the mining sector awake at night.
Legally speaking, the duty to consult is a requirement on governments – federal or provincial – to consult affected aboriginal communities prior to making development decisions that could negatively impact their aboriginal rights or treaty rights and to appropriately consider these impacts. This applies even where there remains uncertainty on the scope of these rights.
The most pervasive myths about the duty to consult are either that the courts have created a legal veto held by aboriginal communities or that it is going to lead to the blocking of all resource development. On the contrary, the courts have been consistent in stating the duty to consult does not create a legal veto.
Misinformation has also circulated within aboriginal communities that there is a legal protection for “free, prior and informed consent” in all circumstances and that has created misunderstandings.
The duty to consult does create an important set of protections for aboriginal communities. Governments must take all information about impacts on their rights, and possibly make appropriate adjustments to the project, which could include a refusal of permits in certain circumstances.
A refusal of permission for Taseko’s New Prosperity mine in B.C. will capture the headlines, but it is an exception. In fact, in many cases, aboriginal communities are keen to participate in resource development and need simply to be brought into the process.
