24 What the Duty to Consult Is Not

The Duty to Consult does not grant Indigenous peoples absolute mastery over their own territory. When outlining the Duty to Consult, the Supreme Court of Canada wished to resolve a conflict that appeared unsolvable. Namely, they wanted to reconcile Indigenous ownership of land pre-European contact with the “sovereignty of the Crown.”^[1]

One of the chief difficulties from the Court’s perspective is that Canada’s democracy frequently requires the interests of individuals or groups to be subjected to the will of the whole. For example, to build a new SkyTrain line before the 2010 Winter Olympics in Vancouver, some businesses were forced to temporarily close alongside the route. These business owners took on serious losses to accommodate the needs of the many. On a similar — and larger — scale, the Crown is responsible for governance of all Canadian lands and sometimes makes decisions to one group’s detriment to improve collective conditions. Where the Supreme Court struggled was effectively asking themselves the question, “How do we preserve the ability of the government to make decisions for the entire public’s good while recognizing that Indigenous people, who did not voluntarily agree to become part of Canada, have rights that arise as a result of them being here first?”

Some are skeptical that a fair balance has been struck between the two extremes. One such critic is Gordon Christie, who writes:

The decision to build a road, for example, might have to be made through consultation with potentially affected Aboriginal rights-holders, and the road itself might have to be constructed in such a way as to “accommodate” certain of the interests expressed during consultation…. But almost certainly the road will be built. (Christie, 2006, p. 160)

In the case of Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), decided by the Supreme Court of Canada in 2004, the Taku River Tlingit First Nation opposed a mining project and sued the Crown, claiming they violated their Duty to Consult. Peter Hogg wrote this summary in his analysis:

[T]he Crown’s duty had been discharged in this case. The environmental assessment took three and a half years. The First Nation was included in the process. Its concerns were fully explained and were listened to in good faith, and the ultimate approval contained measures to address the concerns. Although those measures did not satisfy the First Nation, the process fulfilled the province’s duty of consultation and accommodation. Meaningful consultation did not require agreement, and accommodation required only a reasonable balance between the aboriginal concerns and competing considerations. (Hogg, 2010, p. 193)

Kaitlin Richie brings up the cumulative effect that will happen over time on Indigenous lands. She writes:

With no ability to veto, no obligation on the parties to agree, and the ability of the Crown to “bargain hard”, First Nations seem to be at a clear disadvantage even before any consultation and negotiation occurs. As such, consultation and accommodation will likely require some compromise be made on the part of the First Nation…. With each compromise made, the ultimate result of a First Nation’s participation in numerous consultation processes pertaining to development on its traditional lands will be the gradual erosion of Aboriginal and treaty rights that are tied to those lands. (Ritchie, 2013, p. 431)

While no one project may be destructive to Aboriginal title, numerous projects can chip away at it cumulatively to render it meaningless. To combat this, the British Columbia Court of Appeal released the judgment of West Moberly First Nations v. British Columbia (Chief Inspector of Mines) in 2011 requiring that the Crown begin taking into account the cumulative effects of numerous projects on Aboriginal title. However, the Crown frequently delegates the Duty to Consult to industry proponents (as discussed in the next section), and so it is unclear how the Crown will address cumulative project impacts on Aboriginal title.

Whether the Supreme Court of Canada has successfully resolved the conflict between the assertion of Canadian sovereignty over all the land and respecting the rights of pre-existing Indigenous societies remains to be seen. One can sympathize with the Herculean challenge that the Supreme Court gave itself. We leave it to the reader to determine whether an appropriate balance has been struck.