the agreements on temporary measures are insufficient or unfeasible, such that the
territory continues to be developed despite the existence of legal recourses or
negotiations pertaining to the claims of the Aboriginal people.
The court ruling in Haida and Taku River cases sets out that the Crown henceforth had the
duty to consult the Aboriginal communities and to address their concerns even before the
Aboriginal communities had established the existence of their title on lands as well as
their Aboriginal rights.
2.2
CURRENT APPROACHES TO CONSULTATION WITH FIRST NATIONS
2.2.1
Canadian Court Guidance on Consultation
Consultation is required with Aboriginal peoples whose existing or potential rights may
be impacted by a decision the provincial or federal governments propose to make.
The duty of the Crown to consult with the First Nations and Métis is grounded in the
concept of the “honour of the Crown”. This means that the Government must act with
honour and integrity in its dealing with First Nations. This, in turn, implies a duty to
consult and, if appropriate, accommodate if the actions contemplated by the Government
could adversely affect First Nation rights. The Crown’s duty to consult requires a
meaningful, fair process to have discussions and a substantive discussion that addresses,
or accommodates, First Nation concerns.
The Supreme Court of Canada has set out the clearest definition of the Crown’s duty to
consult in three cases. They are:
Haida Nation v. British Columbia (Minister of Forests), 2004
Taku River v. British Columbia (Project Assessment Director), 2004
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005
These three cases provide extensive detail as to the source of the duty to consult. They
also make clear that the duty arises not only when First Nations have proven rights (for
example, through a court case) but also when they have potential rights (rights that they
implement and assert, but that have not been proven to exist by a court of law) that may
be impacted.
The Court has provided guidance on the following issues:
The Duty of the Crown
Consultation Principles
Procedural Issues
Accommodation
Aboriginal Obligations
Third Party Obligations