Beefs with the duty to consult

The coming together of the Aboriginal law and Environment, Energy and Resources law section in Montreal made for a timely union at the annual CBA conference. In a pre-recorded video message, CBA President John Stefaniuk told attendees that the intersection of these areas of flaw is “more significant than ever.”

Stefaniuk referenced the recognition of rights under Section 35 of the Constitution and the work done in the settlement of land claims and self-governance agreements. “The old proverb ‘may you live in interesting times’ certainly applies to those of us advising clients working in areas of shared responsibility between orders of government,” he said.

He pointed to recent cases, including the Impact Assessment Act reference, which test the limits of what various levels of government can and cannot do in environmental law.

In her opening plenary, Terri-Lynn Williams-Davidson, K.C., of White Raven Law Corporation in Surrey, British Columbia, discussed the interconnectedness between Indigenous principles and environmental law. Williams-Davidson, a citizen of, and general counsel to the Haida Nation, has been practicing Indigenous-environmental law since 1995. She explained how every part of the ecosystem depends on everything else.

An example of this principle being applied is in the co-management of the Gwaii Haanas area by the Haida Nation and Parks Canada. The area covers about 15 percent of the Queen Charlotte Islands off the coast of British Columbia and includes the UNESCO World Heritage site of SG̱ang Gwaay Llnagaay (Nan Sdins).

Parks Canada describes the “Gwaii Haanas Gina ‘Waadluxan KilGulGa (Talking about Everything) Land-Sea-People plan” as the first of its kind in Canada, if not the world. Williams-Davidson said the negotiations that led to this plan were difficult, but “we really felt it was important to embody the principles of interconnectedness.”

Duty to consult

Nigel Baker-Grenier, also with White Raven Law, kicked off the joint session on consultation developments across the country. The duty to consult and accommodate, he explained, arises from the legal concept of the honour of the Crown and is engaged when proposed projects have the potential to interfere with asserted Aboriginal rights that have not yet been established by a court or a formal agreement.

Baker-Grenier, who belongs to the Gisgahaast clan from the Gitksan Nation and is also Swampy Cree from Churchill, Manitoba, said the duty to consult exists on a spectrum. For projects where the impact is minimal or the claim for a right is weak, it may only require notice or disclosure of information. At the other end of the spectrum, the duty “requires deep consultation including participation in the decision-making process to reduce the project’s impact on Aboriginal rights.”

Baker-Grenier went through British Columbia cases to illustrate the limitations of the duty to consult, including the fact it does not recognize Indigenous nations as governments with decision-making authorities. Yet he stressed how important that duty has been given the relative rarity of historic treaties in the province. Often, the duty to consult is the only tool in the box for Indigenous nations. However, in light of the recently announced “Rising Tide” Haida Title Lands Agreement, there is hope the legal landscape in British Columbia will shift from consultation to consent.

The enactment of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) at the federal level and the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in British Columbia recognize an obligation for governments to consult and cooperate in good faith with Indigenous peoples to obtain their free and informed consent for projects affecting their lands.

Since DRIPA was enacted in 2019, there has only been one case interpreting the legislation, Gitxaala v BC (Chief Gold Commissioner). It said DRIPA does not implement UNDRIP into the domestic laws of British Columbia, and that it does not require courts to determine whether the province’s laws are consistent with UNDRIP. That case is currently being appealed.

Bruce McIvor of First Peoples Law in Vancouver joked that his presentation should be titled “Bruce’s Beefs with Consultation,” given how the duty to consult is “based on denial” — denial of Indigenous nations to make decisions about their land — since so much of the power rests with the state.

McIvor, a member of the Manitoba Métis Federation, made an impassioned plea “to move past consultation.” His biggest concern with the duty to consult is that it does not lead to substantive remedies. He worries the courts are instead making declarations, as the Supreme Court of Canada did in the April 12 decision in Shot Both Sides v Canada.

“The Court came out all gung-ho on the great effect of declarations,” McIvor said. “As a practitioner, I don’t see the world through those rosy glasses.”

As he sees it, the key is to remember the guidance from the Supreme Court that when the duty to consult is triggered by a new potential impact, cumulative effects are part of the consultation, not just the immediate effects of the new potential impact.

If we want to end on a positive note on the duty to consult, McIvor concluded, “cumulative effects is where it’s at.”