- Describe the nature of Aboriginal title and the Duty to Consult
- Analyze current issues related to the Duty to Consult
- Consider best practices for industry to respectfully engage with Indigenous communities
The first part of this text focused on the pre-Confederation history of Indigenous peoples’ interaction with the Canadian government. This serves as the foundational context to develop an understanding of Indigenous peoples’ interactions with business interests and the legal system. Some interactions with industry are positive. Many are not.
Significant tracts of British Columbia have not been ceded by Indigenous groups (see the section on The Numbered Treaties). These lands frequently find themselves as the sites of resource extraction (forestry, fishing, mining), thoroughfares (pipelines), or as collateral damage in other projects (pollution runoff, hydro dam flooding). The Supreme Court of Canada has developed the “Duty to Consult” in response to successful Indigenous arguments that the Crown has acted inconsistently with Indigenous rights. These rights arise from Indigenous peoples occupying British Columbia first. In 1982, these rights were further reaffirmed when, in Canada’s new constitution, section 35 was included:
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
These developments have been positive, but a lot remains to be explored. What is “consultation”? Who consults whom? When has consultation been achieved? What are government’s obligations? What are the current issues facing the “Duty to Consult”? The following text explores these questions and more, but you’ll find that plenty of ambiguity remains in this area of law. For Indigenous peoples and Industry that wishes to respectfully work on their territory, much work remains to be done in ensuring the “Duty to Consult” does not serve as cover to affirm exploitative practices.