Blog

Recent events in Canada have shown that resource development projects can face extensive resistance with the affected Indigenous communities if consultation efforts are not meaningful, comprehensive, address the concerns of Indigenous Peoples and not just the legal requirements. With all of the court cases on the books defining title and the duty to consult, all the examples of how not to conduct engagement, and all the examples of how to effectively and successfully engage with a community, it is surprising that at this point in our history that we are still climbing the learning curve.

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During the 2019 federal election, the U.N. Declaration on the Rights of Indigenous Peoples (the Declaration) was included in four (absent from the Conservative platform) of the five party platforms but did not garner the degree of discussion it warrants. Canada, as an official supporter, without qualification, of the Declaration carries a responsibility to honour that commitment.

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The announcement on August 30, 2018, that the Federal Court of Appeal had quashed the Trans Mountain pipeline expansion due, in part, to faulty consultation with Indigenous Peoples, has many Canadians puzzling over what meaningful consultation means.

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The three commonly called Delgamuuk cases are a critical part of the constitutional puzzle of Aboriginal rights and title for British Columbia and all of Canada.

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Why do we see some organizations call their work Indigenous Engagement and some refer to it as Indigenous Consultation? To find the answer we need to look into a somewhat rapidly evolving area of the law called Indigenous Consultation and Accommodation, and specifically at a legal principle called the duty to consult and who owes the duty to consult - the project proponent or the government?

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