The Crown’s perspective on meaningful consultation, negotiation, and land use planning is based on maintaining Crown-assumed sovereignty. In this mindset, Crown-defined Meaningful consultation excludes Immemorial rights, Indigenous sovereingty, Indigenous jurisdiction and Indigenous law from consultation processes leading to free, prior and informed consent.
The Crown’s understanding of ‘meaningful consultation’ is defined in a dearth of common law [court decisions] that has accumulated as Indigenous Peoples turned to Crown courts to protect their rights. Meaningful consultation:
1. Is the Crown’s legal, common law, duty to consult when advancing its colonial interests in land over which Indigenous Peoples claim Aboriginal or Treaty rights that are protected under section 35 of the Constitution Act (1982):1,2
a) It is grounded in the honour of the Crown.3,4
b) It is the Crown’s commitment to a meaningful ‘process’, not a commitment to agree.5
c) It applies to settled and unsettled claims.6
d) It has a defined ‘trigger’ that engages the Crown.7,8,9,10
e) The nature and ‘scope of the duty’ to consult must be determined in each case:11
i. Both the strength of the support for the right and the impact of potential adverse effects are taken into account for this determination.12
f) Consulted rights are recognized and affirmed under section 35 but are not absolute and can be infringed upon:13
i. The infringement of a right can be justified before a court by answering, ‘Can you and should you?’14
2. Is part of a negotiation process to reach an agreement in regard to the Crown taking up of Indigenous lands;15
a) There is no duty to reach an agreement.16
3. Has both consultation and, if appropriate, accommodation components;17
a) The Crown determines if there is a duty to accommodate.18
b) The Crown may not accommodate Indigenous Peoples after a duty to accommodate is established.24
4. Is assessed by the Crown’s offer of accommodation in regard to the potential impact of the infringement on the right under consultation.19
The Crown’s overarching goal of meaningful consultation is the, “… reconciliation of the preexistence of Aboriginal peoples with the present and future sovereignty of the Crown.”20
The Crown’s objectives for meaningful consultation processes are:
1. To discharge its legal duty to consult;
2. To plan the exploitation of Indigenous lands;21
3. To infringe on Aboriginal rights while pursuing objectives for Indigenous land and resources;22
4. To accommodate Indigenous Peoples for infringement on their rights.23
Canada’s current whole-of-government approach to meaningful consultation includes:25
1. Consultation with Indigenous groups on a wide spectrum of activities;
2. Each federal government department is responsible for meeting consultation obligations arising within its mandate;
3. Consultations take place in a variety of fora including:
a) Bilateral meetings with Indigenous groups or representative aggregates;
b) Joint committees established through modern treaties;
c) Regional forums;
d) Multi-stakeholder processes; and
e) Regulatory review processes for resource development projects.
Meaningful consultation using the above whole-of-government approach provides no consultation to community-based rights-holders. Indigenous authority flows bottom-up from community rights-holders and final decision-making (the Inherent Jurisdiction for decisions) is not delegated to community leaders. The Government of Canada’s whole-of-government approach to meaningful consultation fails to provide consultation to the decision-making Indigenous authority that holds all Fiduciary, Treaty, Aboriginal, Inherent, and Immemorial rights.
Indigenous Peoples and Government of Canada officials see meaningful consultation very differently. Under a colonizing relationship with Indigenous Peoples, the Crown’s meaningful consultation for reconciliation of Aboriginal rights is actually a tool used to exploit land when colonizing objectives infringe on Aboriginal rights. This meaningful consultation tool was defined by common law to protect Crown rights to land and resources based on assumed sovereignty and a Doctrine of Discovery.
The Crown’s perspective, then, on meaningful consultation, negotiation, and land use planning is based on maintaining assumed sovereignty. In this mindset, the Government of Canada will continue the colonization of Indigenous lands and the assimilation of Indigenous Peoples.
The Crown needs an appropriate process to meaningfully consult sovereign Immemorial rights to reconcile Crown rights with Indigenous Immemorial rights for past, present, and future generations plus rights of the land.
1 (2008) Canada Aboriginal Consultation and Accommodation: Interim Guideline for Federal Officials to Fulfill the Legal Duty to Consult. https://caid.ca/CanConPol021508.pdf
2 (2011) Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult. https://caid.ca/AboConAccGui2011.pdf
3 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 16. https://caid.ca/HaidaDec010208.pdf
4 Dene Tha’ First Nation v. British Columbia (Minister of Environment), [2006] F.C. 1354, at para. 80. https://caid.ca/DeneThaDec2006.pdf
5 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 42. https://caid.ca/HaidaDec010208.pdf
6 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 24. https://caid.ca/HaidaDec010208.pdf
7 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 35. https://caid.ca/HaidaDec010208.pdf
8 Rio Tinto Alcon Inc, v. Carrier Sekani Tribal Council, [2010] SCC 43, 2010 2 SCR 650 at para 3. https://caid.ca/RioTinDec2010.pdf
9 Dene Tha’ First Nation v. British Columbia (Minister of Environment), [2006] F.C. 1354, at para. 81. https://caid.ca/DeneThaDec2006.pdf
10 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 24. https://caid.ca/HaidaDec010208.pdf
11 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para 168. https://caid.ca/DelDec1997.pdf
12 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 39. https://caid.ca/HaidaDec010208.pdf
13 R. v. Sparrow, [1990] 1 SCR 1075, at p. 36. https://caid.ca/Sparrow020908.pdf
14 R. v. Sparrow, [1990] 1 SCR 1075, at p. 6. https://caid.ca/Sparrow020908.pdf
15 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 24. https://caid.ca/HaidaDec010208.pdf
16 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 10. https://caid.ca/HaidaDec010208.pdf
17 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 20. https://caid.ca/HaidaDec010208.pdf
18 (2011) Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult. p.11. https://caid.ca/AboConAccGui2011.pdf
19 Gitanyow First Nation v. British Columbia (Minister of Forests), 2004 BCSC 1734, at para. 63. https://caid.ca/GitDec2004.pdf
20 Dene Tha’ First Nation v. British Columbia (Minister of Environment), [2006] F.C. 1354, at para. 82. https://caid.ca/DeneThaDec2006.pdf
21 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73, at para 74. https://caid.ca/HaidaDec010208.pdf
22 R. v. Gladstone [1996] 2 S.C.R. 727, at para. 73. https://caid.ca/GlaDec1996.pdf
23 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, at para 20. https://caid.ca/HaidaDec010208.pdf
24 Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), [2017] SCC 54, at para. 154. https://caid.ca/KtunDec2017.pdf
25 (2016) Gray, B., Building Relationships and Advancing Reconciliation through Meaningful Consultation: Report to the Minister if Indigenous and Northern Affairs Canada. https://caid.ca/MeaConRep2016.pdf
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