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“The Government will move forward to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples before the end of this year.” [1] 

As I listened to the speech from the throne on September 23, 2020, I was interested to hear a renewed promise from the federal government to implement the United Nations Declaration on the Rights of Indigenous Peoples. Before the end of this calendar year. That’s an admirable goal, but one I am not sure we will see reach fruition, given that the world is engulfed in a global pandemic and nations are struggling to stimulate economic growth and get their citizens safely back to work and their children safely back to school.  Still, I have my fingers crossed. 

“The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1)  of the Constitution Act, 1982 .”  Haida Nation v. British Columbia (Minister of Forests), 2004; para. 32

For Aboriginal Peoples, federal and provincial governments, and resource development proponents, in terms of constitutionally protected Aboriginal rights, the “Crown’s duty to consult Aboriginal Peoples” is considered by many to be a primary foundational legal doctrine. The duty to consult opened the door for Aboriginal Peoples to utilize the courts to implement, exercise, and protect their rights; it provides the framework for Crown conduct in relation to consulting and accommodating Aboriginal and treaty rights; and, it is the basic ingredient for building reconciliation between the Crown and Aboriginal Peoples.

There are many reasons for researching an Indigenous community but for the purposes of this article we are talking about research in terms of a project proponent and an Indigenous community.

When first starting work on a project that may intersect with one or more Indigenous communities there is a mountain of background information that needs to be compiled. If you are new at working with Indigenous communities knowing where to start your research can be overwhelming so we've put together a resources starter kit.

“The doctrine of Aboriginal rights exists… because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.  It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal status.” – Chief Justice Lamer in R. v. Van der Peet, para 30.

Do First Nation members hold Aboriginal and treaty rights individually or collectively? Or, put more simply do the interests of individuals trump those of the collective or vice versa? There’s a situation unfolding just outside Ottawa that highlights this question.

Consultation with First Nations is a key issue for First Nations, governments (federal, provincial, and local), and the corporate sector (project proponents). The complexity and importance of consultation with First Nations is supported by interpretation of law by Canadian courts (see below) as well as by international institutions.

Lyle Viereck recently launched a private consulting firm Lyle Viereck Consulting Services Inc. As the former Director of Aboriginal Relations and Negotiations for BC Hydro and a Chief Negotiator with the Province of BC, he has a depth of negotiating experience. He also has a unique perspective on reconciliation as part of First Nation negotiation that we were eager to learn more about. Lyle kindly took some time to share his invaluable insight.

Lyle Viereck was born and raised in Prince Rupert in northern BC. His family heritage includes Creek Indians from Oklahoma, American black slaves, Irish and German. As a result of this very diverse background Lyle grew up fighting for equality and against racism and was influenced by his family forming labour and credit unions.

Consultation with First Nations is a necessary part of doing business on First Nation treaty or traditional land. Most levels of government and business leaders have accepted that consultation with First Nations is a legal, necessary and important aspect of doing business with First Nations.

Some First Nations have developed guidelines and protocols for consultation. Some provinces have developed “toolkits” for consultation. What there isn’t is a template for consultation – each Nation and each project requires a consultation process tailored to the situation.