The Indigenous peoples of Canada have a vibrant ancient history in modern-day Canada. When the lands became colonized and named British North America and later renamed Canada, Indigenous people still occupied their ancestors’ lands. Unfortunately, the Canadian government has a history of discrimination and disregard for Indigenous people and their rights, which modern Canadian courts and governments are attempting to rectify under the name of reconciliation.
One part of reconciliation is negotiating and settling government lands that Indigenous peoples have disputed to belong to them. Before settling these Indigenous territorial claims, many of these lands have been permanently harmed by government actions in the pursuit of economic activity, as seen on Haida Gwaii. There has also been a history of governmental actions and decisions that have been held to violate Indigenous rights, as stated in R v. Sparrow 1990. With these factors in mind, the governmental duty for the consultation of Indigenous peoples was verified and codified in the keystone case of Haida Nation v. British Columbia (Minister of Forests) 2004.
Haida Nation involved the Province of British Columbia issuing licencing to forestry companies for logging on the islands of Haida Gwaii, formally known as Queen Charlotte Islands. The government continued to issue licences to the land they have legal title to without the consent of the Haida peoples, who have claimed title to all the lands of Haida Gwaii. At the time of the lawsuit and as continued at the time of writing this article, the Haida people’s title to the land is still in the process of establishing legality.
The main argument from Haida Nation for establishing a governmental duty to consult stems from the notion that that if the title for their Indigenous traditional territories were eventually transferred to local Indigenous groups, then these lands may be altered and damaged beyond repair. The irreversible and detrimental damage to the lands would go against the fundamental principle of reconciliation. To avoid this issue, Haida Nation established a governmental duty to consult groups of indigenous peoples whom the crown knows to have asserted claims to the lands being used.
Before Haida Nation, the courts in R v. Sparrow 1990 identified the obligations of consultations with accommodations on affected Indigenous peoples if the government desired to justify infringement on Indigenous rights under section 35 of the Constitution Act 1982. With the acknowledgment of duty for consultation and accommodation set in Sparrow, Haida Nation set objective standards and guidelines for meaningful consultations. In modern times, most cases have been held that the government satisfies the duty to consult.
One of these standards includes consultations being in good faith. Haida Nation acknowledges that meaningful consultations done in good faith may lead to obligations to accommodate the concerns of affected Indigenous groups. These accommodations vary with the land’s unique circumstances and local Indigenous peoples’ problems. These obligations also extend to legislation as held in Dene Tha’ First Nation v. Canada (Minister of Environment) 2006 and affirmed in Canada (Environment) v. Imperial Oil Resources Ventures Ltd. 2008.
It is important to note that Haida Nation limited the duty to consultation to include the inability to apply Indigenous veto rights to governmental actions and decisions pending final approval of land claims. Haida Nation also emphasizes that consultations must be in good faith from both sides. This includes the obligation of Indigenous negotiators not to frustrate the government’s reasonably good faith attempts nor hold unreasonable positions on government decisions as set in Halfway River First Nations v. British Columbia (Ministry of Forests) 1999.
In the case of Rio Tinto Inc. v. Carrier Sekani Tribal Council 2010, the courts identified a three-step trigger when the legal obligation for consultation and accommodation arises. In Carrier Sekanil, a dam was planned that would severely alter the water levels and the region’s fishing. The Indigenous peoples from Haisla Nation were consulted, but those from the Carrier Sekani Tribal Council were not. This obligation for consultation and accommodation for a particular Indigenous group would be triggered if three principals were present.
The first trigger is that the crown had knowledge, real or constructive, of the potential existence of Indigenous rights or titles set in the Haida Nation. These groups can be identified if there are pending negotiations or court cases from the groups involving the lands in question, as established in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005. The second trigger is the crown’s conduct and if its conduct engages potential Indigenous rights or titles. Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests) 2005 stated that government conduct is not confined to decisions that immediately impact lands, rights, resources, or titles. The third trigger is if there is a potential that the conduct would cause adverse effects on Indigenous claims or rights. These triggers are intertwined with the governmental obligation for consultation pending a final settlement disputed of land titles. The affected groups must show a correlation between proposed government conduct or decision and the impact on claims or rights. These effects can extend to include the inability of Indigenous peoples to exercise their rights as established in R v. Douglas 2007.
In conclusion, the governments of Canada have a duty to consult and accommodate Indigenous peoples who would be adversely affected by their decisions and actions. These principles explicitly apply to lands that have ownership disputes by Indigenous groups. Consultation and accommodation are done in the name of reconciliation due to the past injustices of Canadian governments. Haida Nation is the leading case in this subject and codified when a duty of consultation and accommodation to Indigenous peoples arises, as well as its standards and limitations. Later, Carrier Sekani established which Indigenous group’s consultation obligations apply. Overall, the duty to consult and accommodate Indigenous people’s concerns stems from the desire for reconciliation and the prospect of ancestral land titles transferring to Indigenous groups, which may have irrefutable harm through government actions without consultation.
References:
Legislation
- Constitution Act 1982
Caselaw
- Canada (Environment) v. Imperial Oil Resources Ventures Ltd. 2008
- Dene Tha’ First Nation v. Canada (Minister of Environment) 2006
- Haida Nation v. British Columbia (Minister of Forests) 2004
- Halfway River First Nations v. British Columbia (Ministry of Forests) 1999
- Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests) 2005
- Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005
- R v. Douglas 2007
- R v. Sparrow 1990
- Rio Tinto Inc. v. Carrier Sekani Tribal Council 2010
Books/Articles
- Heckman G, Mullan D, Promislow J, Van Harten G, Administrative Law Cases, Text, and Materials (8th edn, Edmond 2022)