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Duty to consult a mixed blessing: report

The duty to consult is, by all accounts, an important piece of the puzzle when it comes to intergovernmental relationships between First Nations and their territorial counterparts.

The duty to consult is, by all accounts, an important piece of the puzzle when it comes to intergovernmental relationships between First Nations and their territorial counterparts. But a new report says it should not be considered a trump card by either player.

University of Saskatchewan professor Dwight Newman authored the report, which looks at the way the duty to consult has evolved in the Canadian legal landscape, and identified problems with it.

“In the close to 10 years since the Supreme Court of Canada first gave it modern form, the ‘duty to consult’ has been constantly referenced in the media, constantly considered by natural resource project proponents, and constantly misunderstood,” the report says.

“To be blunt, anyone who perpetuates misunderstandings about the duty to consult is standing in the way of Canada’s future.”

The main thrust of Newman’s report is that while the duty to consult has been enshrined in Canadian law by the courts, a rigid interpretation of what it means could be detrimental to First Nations in some cases.

“Some aboriginal communities might oppose a project while others support it - one community may be blocking it and harming another community, in a sense,” Newman said in an interview.

When something like that happens - say three First Nations support a potential pipeline and one opposes it - what constitutes fair consultation? As Newman’s report points out, some parties view the duty to consult as a veto power for aboriginal governments over potential developments on their land.

“Perhaps the most damaging misunderstanding about the constitutional duty to consult is that it will be wielded by aboriginal peoples who are by nature opposed to development to consistently thwart progress in accessing Canada’s rich resources,” the report reads.

Newman identified significant problems with media coverage of the duty to consult and issues of development on aboriginal land. He singled out the “enormous” attention given to folk singer Neil Young’s campaign to stop development in the Alberta oil sands, and contrasted it with the Fort McMurray First Nation’s own views on how it could better benefit economically from partnering with oil sands companies.

In the Yukon, the duty to consult is additionally complicated by the final agreements that 11 of the territory’s 14 First Nations have signed.

“The extent of the settled claims in the Yukon and the final agreements, being a set of modern treaties - that’s a different setting than B.C., with a lot of unsettled treaties, and Saskatchewan, which has many historic treaties,” Newman said.

A recent Yukon example is the court’s decision that the Yukon government has a duty to consult with the Ross River Dena Council before allowing any mineral claim staking on the First Nation’s traditional territory.

There are also questions around whether the government’s handling of the Peel watershed land use plan constitutes fair and honourable consultation with the First Nations involved.

Yukon News columnist Graham Lang argued in Wednesday’s newspaper that in order to overcome the de facto stalemate currently in effect with First Nations - which results in what can seem like an endless litany of lawsuits over this particular issue - the territory should enact consultation legislation, laying out once and for all exactly how these discussions take place.

Newman said that approach “could be a way to try to devise some flexible solutions,” but “at the same time, to put the amount of detail that would be needed in legislation would be quite tricky.”

Consultation could mean different things to different First Nations, depending on the proposed project and their own particular circumstance, Newman said.

“One of the other worries that I’ve had in terms of trying to legislate on it, and I’m not saying it couldn’t be addressed, but we’re always talking about things that have both a federal and provincial jurisdiction,” Newman said.

In general, Newman said that governments and First Nations should both be less rigid in their interpretations of the duty to consult, and seek to work more collaboratively together.

“Those who attempt to draw upon the spirit of the duty to consult may well attain better outcomes than those who attempt to follow the letter of the law or what they see as the minimum legal requirements for consultation and accommodation,” the report said.

Contact Jesse Winter at