The Crown's Duty to Consult Aboriginal People

Abstract

The Crown's duty to consult Aboriginal people when contemplating an infringement of an Aboriginal or treaty right is becoming settled in law. The procedural and substantive content of that duty, however, remains uncertain. These authors demonstrate the need for certainty for industries contemplating the exploitation of lands potentially subject to Aboriginal and treaty rights, and discuss where we can look for certainty.

‘Nehiyawewin Askîhk’: Cree Language on the Land: Language Planning Through Consultation in the Loon River Cree First Nation

“…11. There are many articles that summarise this process, including Lawrence and Macklem (2000), Isaac and Knox (2003) and Szatylo (2002). 12.…”

“…The next section will briefly discuss the role of consultation in Canada, its application and definitions, before moving on to a discussion of the LRCFN's Consultation Unit specifically. Isaac and Knox (2003) write that 'since its first appearance, the Crown's duty to consult has inspired considerable confusion and conflicting views in the academic literature on its definition and implications' (Isaac & Knox, 2003: 50). 10 Although the definitions of consultation remain debatable, the procedures regarding what the Crown's duty is have developed through judicial legislation; 11 the most important decision being that of Delgamuukw v. British Columbia.…”

Who speaks for whom? Implementing the Crown's duty to consult in the case of divided Aboriginal political structures

“…Tom Isaac and Anthony Knox also provide some valuable advice for officials attempting to adequately fulfil the Crown's duty to consult. They indicate that, “In many instances, and as the case law demonstrates, common sense or reasonableness go a long way to ensuring that Aboriginal people are treated fairly, that their rights are taken seriously, and that the Crown's duty to consult has been met (Isaac and Knox :74).” They go on to comment that

Governments lose little by consulting broadly and thoroughly with Aboriginal people, but have much to lose when Aboriginal people are not properly consulted. … Additionally, consultation is relatively inexpensive when compared to the costs of litigation.

…”

“…Litigation can also have larger costs, including those relating to the uncertainty created in the business community each time the Crown loses a consultation‐related decision, thereby building on the culture of adversarial action inherent in serial litigation. In short, consultation is not only the legally correct action to take, but it is the wise action to take (Isaac and Knox :75).…”

A First Nations-led social innovation: a moose, a gold mining company, and a policy window

“…These lands may be provincial Crown or privately held lands. A number of key decisions of the Supreme Court of Canada, dealing with resource and land management over the past 20 years, have changed the relationship of indigenous peoples living in Canada with both governments and private resource developers (Asch and Macklem 1991, Lawrence and Macklem 2000, Isaac and Knox 2003. For example, in 2004, the Supreme Court clarified that the Crown is required to consult with indigenous peoples "when the Crown has knowledge, real or constructive, of the potential existence of the [indigenous peoples'] right or title and contemplates conduct that might adversely affect it" (Haida Nation v British Columbia 2004).…”