Clarifying Duty to Consult

How can we achieve Indigenous economic reconciliation when the legal system perpetuates endless legal grievances and challenges?  Case in point is a recent court ruling in British Columbia that could […]
Published on August 19, 2021

How can we achieve Indigenous economic reconciliation when the legal system perpetuates endless legal grievances and challenges?  Case in point is a recent court ruling in British Columbia that could have serious negative effects on developments in provinces that signed the Numbered Treaties, including Manitoba. 

A B.C. court ruled the British Columbia government breached its obligations under Treaty 8 by permitting forestry, oil and gas, hydroelectric and mining development. The ruling involved Blueberry River First Nations – located in the northeastern corner of the province – that stated that the cumulative effects of province-approved industrial development made it very difficult for the First Nation to meaningfully exercise its treaty rights to hunt, fish, and trap.

The Indigenous community contended it’s territory was not too far away from some sort of “industrial disturbance.” But, how would be that different than many mainstream communities in Canada? And, is it a bad thing to be close to industrial operations?  Such operations bring the promise of jobs and economic development to communities, not to mention lucrative benefit agreements to give communities a future. 

While being able to exercise traditional treaty rights is very important, and there should be a limit to industrial activity, should limitations come at the cost of economic opportunity for all provincial residents – both Indigenous and non-Indigenous?  Courts in 2021 need to seek better balance between traditional treaty rights and resource development.

This recent court ruling also sets up more legal uncertainty for the government and, by extension, private resource companies that engage and consult with Indigenous communities. Industry take their cues from the provincial government when they seek to partner with Indigenous communities on natural resource projects. In these recent cases, the Crown argued that industry could not meet its legal duty to consult and accommodate, by not knowing of the “cumulative effects” of its proposed activities – creating more uncertainty for the province and private investors, explorers, and developers. 

Governments and resource developers need certainty, predictability, and long-term stability. The undefined and subjective nature of the duty to consult makes that challenging. If this legal judgment stands and becomes persuasive in other provinces with Numbered Treaties (like Manitoba), it could embolden some Indigenous communities – encouraged by litigation-hungry law firms – to pursue more treaty rights claims against development. 

In 2015, legal scholar Dwight Newman – writing about northern Saskatchewan – wrote how the well-intentioned legal to consult doctrine, while intended to achieve certainty, can often have the opposite result.  Newman opined that  the presence of the duty to consult can give incentives to perpetuate or encourage legal uncertainties. This state of affairs, he  concluded, encourages Indigenous leadership to pursue “unfinished treaty business.” 

Manitoba has hydroelectric, forestry, and mining opportunities that involve engagement and accommodation of Indigenous communities. These opportunities enrich all Manitobans. Having to forecast the cumulative effects of future economic activities could deter exploration and development to the detriment of Indigenous and non-Indigenous communities in remote regions.  If this kind of a ruling stands, Manitoba will have to clarify and update its duty to consult towards of preventing future litigation.  

If we are to be serious about Indigenous reconciliation, we will pursue certainty and finality in economic development, especially when it involves engaging with First Nation communities.  A clear policy framework will encourage resource development benefiting all Manitobans –  particularly our province’s northern residents.  

 

Joseph Quesnel is a senior research associate with the Frontier Centre for Public Policy. www.fcpp.org 

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