Exhibit
Importance of Consultation
For Aboriginal People
Consultation signals respect for Aboriginal rights.
Consultation provides the opportunity for Aboriginal People to protect their rights.
For the Crown
Consultation provides the opportunity to uphold the “honor of the Crown”
Engaging in consultation can result in a longer term commitment to build a sustainable
relationship and reconcile the ongoing issues originating from the past.
For Third Parties
Consultation improves commercial certainty, predictability and timeliness of decisions
Consultation activities can create mutually beneficial relationships with First Nations
2.1.2
Historical and Legal Context for Consultation
Aboriginal rights are the rights that Aboriginal peoples have because they inhabited
Canada before the arrival of Europeans. They include the right to engage in activities
stemming from practices, customs and traditions that were integral to their distinctive
cultures at the time when they first came into contact with Europeans
The existing rights of the Aboriginal people, whether Aboriginal or treaty rights, are
recognized under section 35 of the Constitution Act, 1982. Hence, they benefit from
constitutional protection. However, these rights, including Aboriginal title, are not
absolute. The Courts have recognized that the Crown can infringe these rights insofar as it
can justify its action. Basically, such a justification is made when the Crown succeeds in
showing that it acted in such a way as to truly take into account the existence of
Aboriginal rights. Consultation may therefore serve as proof of justification.
In the Haida and Taku River rulings handed down on November 18, 2004, the Supreme
Court of Canada made, whether explicitly or implicitly, the following findings:
the classic recourses of the Aboriginal people before the Courts to obtain
recognition of their rights are long and costly;
the injunction route is virtually impossible for the Aboriginal people due to the
balance of convenience which generally tips in favour of the Crown;
comprehensive territorial negotiations are, by definition, a long process; and