Good resource development depends on understanding what the 'duty to consult' is - and what it isn’t

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According to a recent study, misunderstandings around a key legal doctrine threaten both economic progress and aboriginal relations

 

Dwight Newman is a professor of law at the University of Saskatchewan and Canada research chair in indigenous rights in constitutional and international law. He warns in a recent report published by the Macdonald Laurier Institute that “anyone who perpetuates misunderstandings about the duty to consult is standing in the way of Canada’s future.”

Here’s a quick summary of Newman’s key points:

The duty to consult

A 10-year-old legal requirement that says aboriginal people must be consulted about government decisions that affect their rights.

Three myths

1. The duty to consult gives aboriginal groups a veto on resource projects. (It doesn’t.)

2. Governments can go ahead and approve any project they want even if aboriginal groups are opposed. (They can’t.)

3. The requirement will be used by aboriginal groups to routinely block resource development. (It won’t.)

Four facts

The doctrine is a tool to allow government, industry proponents and First Nations to work collaboratively.

It compels government to consult with aboriginal groups before making decisions that might affect their rights - even if those rights are still uncertain. 

It allows aboriginal groups to identify key interests that may be affected by government decisions.

It compels governments to act in good faith to protect these interests.

Advice on how to move forward

To government and industry: Engage early with First Nations and build trust. Don’t try to get away with doing the bare minimum the law requires. Act in good faith.

To First Nations: Recognize that governments maintain the right to make many important decisions. Use the duty to consult to help find solutions that work for all parties.

To the courts: Avoid piling on specific legal requirements. Good collaboration requires flexibility.

To everyone: Follow the spirit of the law, not the letter. The duty to consult will have the best results when its used to promote meaningful dialogue, not courtroom gamesmanship.

 

Peter Severinson is the research director for Resource Works.


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