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A look at the facts and fiction around the duty to consult aboriginals

OTTAWA - Long before Prime Minister Stephen Harper's cabinet approved the Northern Gateway pipeline this week, there were complaints the federal government had not sufficiently heeded the concerns of First Nations.

Much of that work — the government's constitutionally mandated "duty to consult" — has been left to Enbridge, the company building the pipeline, and to a special board that looked at the environmental impact of the controversial project.

But questions continue to swirl around the concept, which will be shaped for years to come by the court cases Northern Gateway is sure to spawn.

While a section of the Constitution protects aboriginal and treaty rights, it wasn't until a historic Supreme Court decision in 2004 that governments had a legal duty to consult aboriginals on matters that might affect them.

That changed when British Columbia's Haida people went to court over logging licences the province granted without their consent in the 1960s in an area of Haida Gwaii, an archipelago also known as the Queen Charlotte Islands.

The Supreme Court eventually ruled that the Crown has a duty to consult First Nations on any matter that might impact their aboriginal or treaty rights — even if those rights have not been fully carved out in law.

"Before, government always had room to gamble on whether it was important to consult or not on a particular case," said University of Saskatchewan law professor Dwight Newman, who holds the Canada research chair in indigenous rights in constitutional and international law.

"Now they've been told that they have to."

It doesn't take much to trigger the duty to consult, which arises when the Crown is thinking about doing something that might affect aboriginal interests.

But there needs to be a link between the government's action and the potential for a negative impact on an aboriginal community, said Tom Isaac, a partner with Osler, Hoskin & Harcourt LLP who practices aboriginal law.

Nor is the duty to consult a veto, said Isaac: the Crown has a duty to consult aboriginals, but it does not have to meet any or all of their demands before a project goes ahead.

"Even if the judge thinks the government didn't do a great job in accommodating, they are not to interfere ... unless there's been an overriding and palpable error," he said.

"What's that mean practically? It's a big deal to overturn what the government wants to do, as long as they behave in good faith, with honour and reasonably."

While the duty to consult rests solely with the Crown, some of that responsibility can be delegated to third parties, such as companies. How much, however, is not clear.

Often, as with Enbridge, companies gather information and hold meetings with aboriginals.

"There are real issues, because the government's approach in many cases has been largely to say, 'We'll let companies do all of the up-front work ... and then we'll have a look at it and decide if we need to do anything more,'" said Robert Janes, a Victoria lawyer who focuses on aboriginal issues.

That has created tension between First Nations and Ottawa.

"I actually do think it's unconscionable that the government thinks that they can, in some way, shape or form, pass on their legal obligations to sit down, engage with, consult First Nations," said Jody Wilson-Raybould, the Assembly of First Nations' regional chief for B.C.

The federal Conservative government obviously feels differently. A cabinet order posted Thursday says the Crown fulfilled its duty to consult by relying on the work of the joint review panel, which is a board set up to assess the pipeline's environmental impact, along with "additional consultations."

Some First Nations believe the government also has a duty to get their "free, prior and informed consent," a phrase that comes from the United Nations Declaration on the Rights of Indigenous Peoples.

Canada was one of four countries that initially opposed the declaration, which is not legally binding, before the UN adopted it in 2007. Canada eventually endorsed it.

Many aboriginals see the declaration as a standard government must meet.

"In First Nations communities, this has actually become, in one sense, almost a new standard," said Ken Coates, an expert on aboriginal issues at the University of Saskatchewan.

"That's not the government's view. It is not the corporations' view. It is not the law's view. But it is there in the process. I think it's important to understand that we're getting to a situation where people are starting to talk across each other."

The law around the duty to consent has continued to evolve since the 2004 Supreme Court decision. Subsequent rulings have clarified that individuals are not owed the same right to be consulted as communities.

The court cases that arise from Northern Gateway could end up answering the lingering questions around the duty to consult.

"This is such a major scale and there's so much at stake that you're almost certainly going to get not just litigation, but precedent-setting determinations coming out," Coates said.

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