How do our perceptions shift when the duty to consult (DTC) is understood as a process of legitimizing theft and a non-combative means of dispossessing Indigenous peoples for the benefit of a settler nation?[1]
Image retrieved from http://nationalpost.com/opinion/letters/todays-letters-ideas-for-solving-the-native-issue
Tansi Nîtôtemtik,
The perfunctory nature of the Crown DTC and accommodate Indigenous peoples in Canada is very different in theory than in practice, and in its current form, the process is designed to ensure that the claims of Indigenous groups are destined to fail.[2] Arguably, the notion of reconciliation that underlies and justifies treaties, title claims, and consultation processes “is more concerned with reconciling Aboriginal peoples to Canada than it is with reconciling Canada to the existence of different social, cultural, and political entities within the state.”[3] In its current mobilization as a mechanism of colonization, the DTC is “a systemically disempowering process”[4] that stands as a barrier to, rather than a tool for, achieving reconciliation.
Since the protection of Aboriginal and treaty rights by the Canadian Constitution[5] in 1982, Aboriginal law in Canada has developed to include a constitutional duty of consultation. Although informal duties of consultation have been recognized in certain contexts for a longer period, “particularly as part of the justification test first set out in Sparrow[6] for infringements of Aboriginal rights protected by section 35,”[7] the DTC is generally accepted to have been concretized by the ‘trilogy’ of Haida Nation,[8] Taku River Tlingit,[9] and Mikisew Cree.[10] These decisions outline the basic legal principles of the DTC.
The duty is grounded in the honour of the Crown and mandates fair dealing.[11] The duty arises “when the Crown has actual or constructive knowledge of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect those rights or title.”[12] We will be discussing rights and title in more detail in next week’s blog posts, so for today’s purposes, it is enough for you to know that collective Aboriginal and treaty rights must be affected and that claims must be brought by a recognized Indigenous group; individual Indigenous persons do not have standing to raise a breach of the DTC.[13] Direct, indirect, and strategic level/legislative action can all attract a DTC.[14]
The extent or content of the DTC is fact specific and the consultation and accommodation requirements increase or decrease depending on “the strength of the prima facie Aboriginal claim and the seriousness of the potentially adverse effect upon the claimed right or title.”[15] Weaker claims and minor infringements may trigger a duty on the lower end of the consultation spectrum, in which case the Crown may only be required to give notice of contemplated action, disclose just the relevant information, and possibly discuss issues raised in response to the notice.[16] Stronger claims and major infringements may trigger a duty on the higher end of the consultation spectrum where deep consultation will be required.[17] Although the case law does not provide a checklist for what will be required at this level, the process may entail “the opportunity to make submissions; formal participation in the decision-making process; and, the provision of written reasons to show that Aboriginal concerns were considered and how those concerns were factored into the decision.”[18] A flexible and individual approach is necessary as the requirements of the DTC will depend on the facts of each case.[19]
As the requirements can vary, so too can the bodies involved in carrying out the procedural aspects of the DTC. It is settled law that elements of the DTC can be delegated from the Crown to non-governmental project proponents including corporations (such as municipalities or industry stakeholders) and institutions of public government (such as boards or tribunals).[20] Provincial decision-makers may be statutorily enabled with the capacity to undertake the DTC, the duty to determine whether adequate consultation has taken place, both duties, or no duty at all.[21] However, when the Crown relies on a regulatory or environmental assessment process to fulfill the DTC, this reliance is not considered a delegation of the Crown’s duty but is instead to be understood as “a means by which the Crown can be satisfied that Aboriginal concerns have been heard, and where appropriate, accommodated.”[22] Participation in a forum created for other purposes may satisfy the duty to consult “if in substance an appropriate level of consultation is provided.”[23]
In all of this, the focus is to be placed on the process and not the outcome.[24] The process neither guarantees a specific outcome, nor provides Indigenous groups with a veto power, nor burdens the Crown with a duty to reach agreement.[25] The case law demonstrates that “perfect satisfaction is not required,”[26] as long as reasonable, good faith efforts are made to inform, consult, and sometimes accommodate Indigenous groups’ concerns.[27] The DTC is ultimately a procedural right where Indigenous peoples are only owed a process in which justice is seen to be done. Unfortunately, it does not come with a guarantee that justice will be done.
Historically, the British Imperial Crown and its Canadian successor were overtly engaged in the colonization of Indigenous lands. People were separated from their territories, communities, and families[28] as their lands were partitioned off and given “to third parties for settlement, resource development, nation-building or other government purposes, or retained as Crown lands.”[29] In contemporary Canada, colonization takes a more latent form and the DTC is just one of many areas where the iron fist remains – it is merely shrouded by a velvet glove. Indigenous peoples refuse to disappear, and their presence continues to inconvenience the Crown.[30] Gains have arguably been made, in terms of constitutional and human rights, but “while Aboriginal peoples can now legitimately question the injustice of colonial encounters and lay claim to pre-existing rights within the nation states in which they live, it is also becoming increasingly clear that these states can extensively modify, infringe, or extinguish Indigenous rights.”[31] Indigenous land interests continue to be conceptualized as “no more than burdens on Crown title,”[32] and new legal tests create almost insurmountable hurdles for Indigenous groups to jump before proving any claim. In the creation, implementation, and adjudication of modern law and policy, the same sentiments seem to make their way from past to present.[33] Even when accommodations are made, alterations to a plan do not include questioning the larger policy.
Throughout the blog, we've traced Crown initiatives from civilizing, to assimilative, to suppressive, to reconciliatory. In the context of the DTC, this same analysis allows for the interpretation that the discourse of “reconciliation may simply be another masked attempt to silence Indigenous resistance.”[34] Is this really a “new relationship”[35] between Indigenous peoples and the Crown? The same vision of land use is pushed through now as it was before section 35 and the DTC. Aboriginal title jurisprudence is still based on precedents that rely on concepts such as “terra nullius and the Doctrine of Discovery.”[36] The Crown is still profiting at the expense of Indigenous peoples.[37] The “disparity in the wealth and resources of Aboriginal groups and non-Aboriginal stakeholders continues to grow”[38] and “all the while, life gets worse for most Indigenous people. In day-to-day terms, the Constitution has little relevance for improving the health, welfare, and security”[39] of Indigenous individuals or communities. Rather, they are simply (sometimes) given warning when their rights will be infringed and when their lands will be used to benefit someone else. Operating within a colonial institution, and used to protect colonial interests, the DTC is by its very nature substantively limited.
The DTC also contains procedural limitations. Even if the process could be considered meaningful, the unequal footing on which the parties stand is an indication of unfairness. Consultations are “technically complex and generate huge costs.”[40] Economic inequity and inadequacy of resources have “a large impact on the ability of First Nations to meaningfully participate.”[41] Industry and the Crown have deep pockets and can afford to prolong the process; Indigenous communities usually cannot. Where there are project proposals, there tend to be many, and communities are often left to deal with huge quantities of paperwork in small offices. This means that “few First Nations have the resources to review all information sent to them.”[42] Some bands see upwards of one thousand requests for consultation per year.[43] The confusion is added to by the multiple bodies involved in carrying out consultation; this can make it “difficult for an Aboriginal community to identify when it is or when it is not engaged in discussions that amount to consultations for the purposes of the DTC, [especially when] various industry representatives engage in discussions that might later be portrayed as part of a consultation process”[44] when in reality they were not.
Further, consultation is separated into project-specific compartments that tend to make the bigger picture invisible.[45] The cumulative impacts of multiple projects are excluded from analysis by the legal limits of the DTC. Also left out of the equation are “impacts on human health deriving from effects on culture.”[46] The limited environmental assessments that are done have led to “thousands of sacred sites in Canada [being] destroyed or damaged, and thousands more threatened, by planned development.”[47] For instance:
"Bulldozing an area where there are ancient human remains of an Anishnaabeg person might register as insignificant in an assessment or be thought to be mitigated by removal of the bones. However, for Anishnaabeg First Nations, failure to protect the site from disturbance is a failure to fulfil community obligations to the dead as well as rules regarding grave construction, location, visitation, feasting, and protection. Thus, while an assessment may identify an impact to the site, it rarely identifies cultural losses that can seriously affect community well-being and exacerbate disputes with federal and provincial governments."[48]
Disturbingly, designation of sacred sites is not enough to prevent project approval. All of these procedural limits coalesce to increase the reasonable distrust that many Indigenous people harbour towards the Crown and its delegates. The DTC inevitably takes huge a toll on any Indigenous participants.
In light of these weighty limitations, it is evident that the DTC is simply another “veneer”[49] disguising the fact that “Canada is still colonizing after all these years.”[50] Until Indigenous consent is a requirement for environmental development to move forward, this will not change. In two weeks, we will examine how the United Nations Declaration on the Rights of Indigenous Peoples offers one such paradigm for mandating consent. In the meantime, stay tuned for the rest of this week as we find out more about the ‘the honour of the Crown,’ the concept of fiduciary duty, and the latest DTC case law.
Until next time,
Team ReconciliAction YEG
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[1] Caleb Behn, “The Duty to Consult” (Consultation in Environmental Legal Issues: Aboriginal Law Speaker Series delivered at the Faculty of Law, University of Alberta, 9 March 2017) [unpublished].
[2] In the province of Alberta, Indigenous opposition has never resulted in a development project being cancelled.
[3] John Borrows, “Domesticating Doctrines: Aboriginal Peoples after the Royal Commission” (2001) McGill Law Journal 46:3 615 at 10 [Borrows, “Domesticating Doctrines”].
[4] Behn, supra note 1.
[5] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35 [Constitution].
[6] R v Sparrow, [1990] 1 SCR 1075.
[7] Dwight G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich Publishing, 2009) at 9 [Newman].
[8] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation].
[9] Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 [Taku River Tlingit].
[10] Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69.
[11] See Haida Nation, supra note 8 at para 32.
[12] Ibid, at para 35.
[13] See Behn v Moulton Contracting Ltd., 2013 SCC 26 at para 42.
[14] Richard Raffai, “The Duty to Consult” (presentation in LAW 599:B16 Indigenous Peoples, Law, Justice, and Reconciliation, University of Alberta) 3 April 2017 (unpublished).
[15] Haida Nation, supra note 8 at para 39.
[16] Ibid, at para 43.
[17] Ibid, at para 44.
[18] Ibid, at para 44.
[19] Ibid, at para 45.
[20] Newman, supra note 7 at 67.
[21] See Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2010 SCC 43 at paras 55-65.
[22] Haida Nation, supra note 8 at para 53.
[23] Taku River Tlingit, supra note 9 at para 39.
[24] See Haida Nation, supra note 8 at para 63.
[25] Ibid, at para 42.
[26] Ibid, at para 62.
[27] Ibid, at para 62.
[28] Hadley Friedland, “The Blanket Exercise” (presentation in LAW 599:B16 Indigenous Peoples, Law, Justice, and Reconciliation, University of Alberta) 18 January 2017 (unpublished). For more information, see KAIROS Blanket Exercise Workshop, online: http://www.kairoscanada.org/what-we-do/Indigenous-rights/blanket-exercise.
[29] Mary Eberts, “Still Colonizing after All These Years” (2013) University of New Brunswick L J 64 123 at 124 [Eberts].
[30] See Thomas King, The Inconvenient Indian, (Toronto: Anchor Canada, 2012). See also Wilkins, supra note 38 at 63 and 66.
[31] Borrows, “Domesticating Doctrines” supra note 3 at 1.
[32] See Gordon Christie, “A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation” (2005) Windsor Year Book Access to Justice 23 17 at 35 [Christie].
[33] Land development and resource extraction is only one example. This phenomenon can also be seen in the contexts of Aboriginal child welfare (where the infamous mantra of “Kill the Indian in the child” becomes “in the best interests of the child”), criminal justice (where complex and varied Indigenous legal systems are wrongly equated with and limited to basic conceptions of restorative justice), missing and murdered Indigenous women (where perpetrators go unpunished and cases go uninvestigated), and legislation such as the Indian Act (where the federal government maintains control over Indigenous peoples’ identities and jurisdictional gaps lead to inertia).
[34] Behn, supra note 1.
[35] See Newman, supra note 7 at title.
[36] Brenda L. Gunn, “Protecting Indigenous Peoples' Lands: Making Room for the Application of Indigenous Peoples' Laws Within the Canadian Legal System” (2007) Indigenous Law Journal 6 31 at 40 [Gunn].
[37] See Deborah M. I. Szatylo, “Recognition and Reconciliation: An Alberta Fact or Fiction? The Duty to Consult in Alberta and the Impact on the Oil and Gas Industry” (2002) Indigenous Law Journal 1 201 at 204 [Szatylo].
[38] Ibid, at 204.
[39] John Borrows, “Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism” (2017) Canadian Historical Review 98:1 114 at 121 [Borrows, “Challenging Historical Frameworks”].
[40] Newman, supra note 7 at 38.
[41] Timothy Huyer, “Honour of the Crown: The New Approach to Crown-Aboriginal Reconciliation” (2006) Windsor Review of Legal and Social Issues 21 33 at 45.
[42] Ibid, at 45.
[43] Newman, supra note 7 at 38.
[44] Ibid, at 36.
[45] Behn, supra note 1.
[46] Sari Graben, “Resourceful Impacts: Harm and Valuation of the Sacred” (2014) U of Toronto Law Journal 64 64 at 103 [Graben].
[47] Ibid, at 65.
[48] Ibid, at 66.
[49] Jenna Broomfield, “The Treaty Relationship” (presentation in LAW 599:B16 Indigenous Peoples, Law, Justice, and Reconciliation, University of Alberta) 13 March 2017 (unpublished).
[50] Eberts, supra note 29 at 125.
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