MORGAN: Duty to consult keeps projects from moving

The ever-shifting goalposts of what constitutes adequate consultation with indigenous bands on pretty much any action of the government these days are crippling the nation economically and socially. Until the actual obligations of the country to indigenous people are definitively defined, no substantive policy initiatives or infrastructure projects will ever come into being in the country.The duty to consult indigenous people isn’t within the Canadian Constitution. Section 35 is a short and straightforward segment of the document. It states: 35 (1) The existing aboriginal and

treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit, and Métis peoples of Canada.(3) For greater certainty, in subsection (1), “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.Note, it does not say consult anywhere within

that text. It certainly doesn’t say consent. The duty to consult we keep hearing of is a judge-made constitutional obligation developed by the Supreme Court of Canada. In a ruling regarding the Haida band in 2004, the Supreme Court stated, “When the Crown (federal or provincial government) contemplates conduct that might adversely affect established or potential Aboriginal or treaty rights, it has a duty to consult the affected Indigenous group(s).”The nature of Canada’s system follows the living tree doctrine. It’s a principle of constitutional interpretation

that views Canada’s Constitution as a dynamic, evolving document rather than one frozen in time. It’s a nice ideal, but it has empowered activist judges to veritably rewrite the document and not in a good way.The definition of what may or may not impact treaty rights hasn’t been clarified, which dumps the onus of consultation upon pretty much anything. Treaties don’t confer many rights outside of reserves aside from hunting and fishing access. But as usual, courts have “read in” all sorts of implicit rights,

which have created a quagmire. Even trying to build a new golf course distant from any reserve lands could become a consultation nightmare. The principle of consultation is simple on its face. Consult means to seek advice, information, or input from someone before deciding.When looking at that definition, it appears to be a well-meaning principle which is easy to achieve.The problem is that the courts continue to shut down projects and claim there hasn’t been enough consultation. The attempts by Kinder Morgan to get approval

for the Trans Mountain pipeline expansion are a prime example of this. They held hundreds of public and private meetings. They invited every indigenous person in Western Canada to add input. They met with every chief they could find, and they hired countless consultants to try to reach out. Despite this, they were constantly told it wasn’t enough. In the end, they just gave up and left, and who could blame them?.Activists and courts have blurred the line between consult and consent. Even if the

bar for consultation was finally defined and met by a person, company, or government, trying to go through the process was met, some indigenous person or another will refuse to consent to the deal. Unanimous consent is an impossible goal to reach, and no authorities have the courage to finally tell indigenous activists, “We have done our due diligence and are going ahead now, whether you like it or not.” If we ever want to get things done, the response to these opponents really must

be this blunt.In the oilfield, the process of consultation was used as a form of extortion by bands. When I was doing advanced work on seismic projects, we would have to get nearby indigenous bands to sign off on the consultation process. While technically, we only needed to consult, we couldn’t move until we had that signature. In other words, we needed consent. Garnering consent typically meant ensuring the chief was well compensated through hiring his or her “preferred” contractors and perhaps giving some salaried

positions to some folks, even if they didn’t actually do anything. Sometimes the compensation was a little more direct. In the end, it just led to killing work as companies pulled out of regions.Now, a province can’t even hold a democratic referendum without the permission of a handful of chiefs representing a portion of a small ethnic minority within the country. Canada has given race-based, de facto veto authority to the representatives of some of the most socially dysfunctional communities on the continent.It’s a recipe

for disaster politically and economically. It will come to a head if this issue isn’t resolved, and it could end terribly if this resolution doesn’t come soon. The rule we need defined legally is that consultation does not mean consent. If the minority continues to stymie the democratic rights of the majority, frustration may lead to the majority asserting itself in extrajudicial ways. In such a circumstance, everybody loses.

duty to consult, Section 35, Haida band, living tree doctrine, Supreme Court of Canada, Trans Mountain expansion, Kinder Morgan, Indigenous rights, consent, referendum