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FARE-talk is to provide an enduring conversation about contemporary topics relevant to food, agricultural, and resource economics.

The Canadian Government's "Duty to Consult" Indigenous People: Meaning, History, and Consequences - April 4th, 2019

[Introductory music]

Brady Deaton: Welcome to FARE Talk where we set out to provide enduring discussions on contemporary topics relevant to our economy with particular emphasis on food, agriculture and the environment. My name is Brady Deaton Junior of the Department of Food, Agriculture and Resource Economics at the University of Guelph. I will be your host. [music ends]

Brady Deaton: Today is April 4th, 2019, and our FARE-talk guest is Dwight Newman, and the subject we will be discussing is the Canadian government's duty to consult with indigenous people. Dwight is Professor of Law and Canada Research Chair on Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. Dwight has written many articles on this topic and his book, Revisiting the Duty to Consult Aboriginal Peoples, is both engaging and insightful, and we'll make links to his material available on our website. Dwight, welcome to FARE-talk.

Dwight Newman: I'm glad to be with you.

Brady Deaton: For our listeners, this podcast is a bit of experiment. You'll be hearing the voices of students in my natural resource economics class, and the reason for this is in one of our initial classes regarding issues associated with oil and pipelines and natural resource economics in general, the issue of duty to consult came up and we realized that it was an important institutional detail that we needed to learn more about, and that led us to explore some of Dwight's work. Dwight, before I turn it over to the class to ask more specific questions about duty to consult, at the most general level, why do you think this is an important issue and by extension, why should Canadians and listeners to our podcast internationally tune in?

Dwight Newman: Well, I think the duty to consult doctrine in Canada – and there are variants on it in other jurisdictions as well, but we're going to talk, I think, mainly about that in Canada – is very significant in a few different ways. One of those is that it may be an important protection in various circumstances for Indigenous communities and their interests and then in addition to that it has a lot of effect in the contexts like those that you've referenced in terms of natural resource development contexts, where the engagement with indigenous communities is very much structured today in Canada by this legal duty to consult doctrine or at least that's the background to other choices that communities and industries sometimes end up making.

So it really affects an enormous number of situations. It's triggered hundreds of thousands of times per year. We'll need to back up to what it is and so on, but it really arises in almost every resource development decision that's being made in Canada today and some other kinds of issues as well, so it's a very important legal doctrine that affects a lot of different contexts.

Speaker 3: Thanks, Professor Newman, so along that same train of thought, in your 2014 paper, The Rule and Role of Law, which addresses duty to consult, you write, and I quote, "To be blunt, anyone who perpetrates misunderstanding about the duty to consult is standing in the way of Canada's future." Can you let us know what is duty to consult and what are these misconceptions?

Dwight Newman: In simple terms, the duty to consult is a legal requirement on the Crown when it's making a decision that could affect Aboriginal or treaty rights, and it's a proactive duty on the Crown to consult with the potentially affected Aboriginal communities. And just about every word that I've said within that is actually, I think, of significance. It is a legal requirement. It's something that does have to be done in the context of making those kinds of decisions.

It's a duty on the Crown. And there was some debate in the early case law on this on whether it was a duty also on industry or so on, and the decision is that it's on the Crown, and that can be either the Crown at the federal level or the Crown at the provincial level, so in rough terms we could say it's a duty on the federal or provincial governments, depending on the kind of situation at issue, the kind of decision at issue, whether it's in federal jurisdiction or provincial jurisdiction.

It's in the context of the Crown making a decision, and so when I say the Crown making a decision, we're really talking about an administrative decision by government in the context of usually something that's guided by legislation, that there's a decision about by decision makers within the administrative state on behalf, in the Canadian context, of the Crown.

And it's in the context of something that could affect Aboriginal or treaty rights. In some of the case law, the Supreme Court of Canada ends up saying that it arises even in the context of uncertainty about what would finally be found about these rights, whether decided in court or negotiated through agreement. It's a protection in an interim situation where there's continuing legal uncertainty, and it's a proactive duty to consult with potentially affected Aboriginal communities and sometimes to accommodate their interests.

So it means that there needs to be some kind of a discussion, although it can range in the exact contents of that, but some kind of an engagement with the Aboriginal communities whose claimed Aboriginal or treaty rights might be affected by a government decision, and sometimes then there's also a duty to try to limit those impacts upon the rights based on what's heard within that consultation.

I'll add, also, just something that I think one could highlight out of those things I've just said. It's a duty that applies in the context of administrative decisions, so the government making a decision to grant a permit or a license as guided by legislation that exists. There's been, actually, a recent Supreme Court of Canada case, the Mikisew Cree Case that has made very clear it's not a duty that applies when the government is developing legislation, so in the legislative process.

Now, it's a bit of a complicated case, but at a simple level it says the duty to consult, the legal duty to consult doctrine doesn't apply in that context, and that's consistent with what would have been observed before. Now, what are some of the possible misunderstandings that people could have of this? People sometimes think that the duty to consult is a veto power and a means by which an Indigenous community that disagrees with a decision could reject it, or disagrees with a potential decision.

That's certainly legally not the case. The courts have repeated again and again that the duty to consult is not a veto power. There may be situations where it practically becomes something akin to a veto power or has that effect, but that's a bit of a different statement, and sometimes people misunderstand it as if it's a legal veto power.

There's no obligation on the Crown under the legal duty to consult to get agreement from Indigenous communities to the decisions that it's making, and in fact it's, in some way, not even necessarily setting out to do so because it's not asking, "What are the views of the community?" It's asking for information about impacts on Aboriginal rights or treaty rights and then working to try to avoid those negative impacts. That's the first misunderstanding I would highlight, is that issue about veto power.

On the other side of it, there are people that think that it's entirely meaningless and doesn't give any protections to the Indigenous community. People say, "Well, if you look at the record of decisions made on certain kinds of issues, projects get approved anyway," and so on. There are actually some law professors who've gone and done studies on decisions of the National Energy Board and have written these articles about the fact that it almost always decides in favor of a project proposed to it.

The trouble is those studies are quite deceiving because that kind of claim assumes that you just have a random sample of projects that have been put forward to the National Energy Board, and the thing is that project proponents only put something forward and spend a lot of money through the regulatory process when they think it is going to be approved, and so the law that's there actually weeds things out earlier.

And if they realize that there's going to be a big problem in respect to Aboriginal or treaty rights, they're not usually going to put the project forward, so the duty to consult doctrine is triggered hundreds of thousands of times a year in Canada. Many consultations occur under it, and it is an important protection for Indigenous communities and something that is certainly far from meaningless on the sort of [inaudible 00:10:36] that sometimes goes around.

There are other misunderstandings of it that occur, but I think those are probably the two most common ones, even though they're on different sides of how people are reading the effects of the duty to consult. That's sort of the essence of the duty, is this legal requirement on governments before they make a decision that could affect Aboriginal or treaty rights to consult with the communities on those potential effects.

Speaker 3: And can you just clarify what treaty and Aboriginal rights are?

Dwight Newman: Well, that's a more complicated question than it might seem. I can try to explain in simple terms. Under the Constitution Act, 1982, which is the set of amendments that were made to Canada's Constitution in 1982, and that includes the Charter of Rights in sections 1 through 34, and it includes an amending formula, and it includes a variety of other things that are in the Constitution Act, 1982.

One very important part to it is Section 35, which comes right after the Charter, and it says that the Aboriginal rights and treaty rights of the Aboriginal Peoples of Canada are recognized and affirmed by the Constitution. Treaty rights are probably a little simpler to grasp. They're those rights that were agreed to in treaties.

Many historical treaties were negotiated in Canada during certain periods in the mid 1700s in the Atlantic provinces, in a period of treaty making in the mid 1800s in Ontario, and a period called the Victorian Treaty or the Numbered Treaties because they all end up getting numbers on them from 1870 on through to 1921 that cover a lot of Northwestern Ontario, the prairie provinces, a little bit of the north, a little corner of British Columbia.

But then there were a lot of parts of Canada still left without treaties at the end of that phase of treaty making, so we also have a phase sometimes then distinguished as at modern treaties, and the modern treaties cover a lot of Canada's north. There are modern treaties in significant parts: today most of Quebec. There are a few modern treaties in British Columbia.

And these treaties are a bit different than the historical treaties. The historical treaties are quite short and subject to, probably, more interpretation. The modern treaties were negotiated as very detailed agreements between Canadian governments and Indigenous communities that entered into them, and they run hundreds of pages long each, so those are also treaty rights, the rights that are agreed under those modern treaties.

Aboriginal rights are rights that are developed, well, recognized through the courts, and from a practical standpoint we would say in some ways that you have to look to what gets developed through the courts. In other sense, they're considered inherent rights. They're rights held by Aboriginal communities on account of having been prior political societies in what's Canada today, and the courts have developed legal tests on which there's ongoing controversy to some extent, but over the types of Aboriginal rights that will be recognized in Canadian law.

One Aboriginal right is Aboriginal title, and that's a land right that's a right to exclusive ownership of certain lands based on meeting certain legal tests for that. And then there are other Aboriginal rights, which in some cases are a traditional harvesting right like a hunting or a fishing right, and that may well be outside an area that's under Aboriginal title.

And there can be other types of aboriginal rights recognized as well, and there are certain legal tests that the courts use in trying to determine those. A lot of evidence that goes in of communities' traditional practices that factors into the application of those legal tests. And there's a lot of ongoing discussion about whether the tests are the right tests and what can be done to get more clarity.

I'll just highlight that issues like Aboriginal title continue to arise in parts of Canada where there aren't treaties or where treaties didn't deal with land issues, and so most of the Province of British Columbia, the overwhelming part of it is subject to ongoing Aboriginal land claims, where there have been no treaties negotiated either historically or in the context of a very slow, modern treaty process. But both treaty rights and Aboriginal rights, then, are recognized and affirmed in Section 35 of Canada's Constitution Act, 1982.

Speaker 4: Hello, Professor Newman and thank you once again for discussing such an important issue with us. I'd like to ask a couple of questions to clarify when the duty to consult is triggered and the relevant parties involved. In your book, you outline three conditions that must be met to trigger the duty to consult. That's knowledge of a potential claim, adverse effects, and contemplated government action. Could you just discuss those a little bit and give us a sense of the relative difficulty or ease of meeting those conditions and also whether it could apply retroactively to past decisions?

Dwight Newman: Okay, so there's a few questions there, and I'll try to work through them. Turning to this question of when the duty to consult is triggered, as you've said, there are these three components, and these are what have now been recognized in a number of different cases out of the Supreme Court of Canada and other courts. I'll say a bit on what they are and try to say something on how easily they're met or not.

One element, certainly, is that there is knowledge of asserted Aboriginal or treaty rights, and the official language of the decision says that that can be actual or constructive knowledge. Actual knowledge means that the government actually knows about those things, as the word suggests. Constructive knowledge is, perhaps, a less-familiar concept to non-lawyers, but the idea is it's a situation where the government should have known of that Aboriginal or treaty rights claim.

So where there's a claim that's there and publicly knowable: it's not something that's not yet been put out anywhere, that element is probably fairly easily met, and it's just a case of "Is there or is there not an Aboriginal or pertinent treaty rights claim that relates to the situation?" The second element that we might talk about is that there's contemplated government conduct or a contemplated government decision or technically a Crown decision or Crown conduct.

Again, it's a factual question on "Is there something the government is thinking of doing?" and that's not that difficult to find, if it is considering something. The trickier parts there pertain to issues like, "Is the government thinking of doing something?" if you're talking about an early stage of decision making on a question. They're making a longer term plan; is that contemplated conduct in the same sense and the sense that meets the legally required test?

Actually, the Supreme Court of Canada has said that they'll consider the tests triggered at an early stage of things if that's going to dictate later decisions, putting it in simple terms maybe. The part that can be maybe trickiest is whether there's a negative or adverse impact that could arise from the conduct for the claimed Aboriginal right or treaty right.

Here, there are cases where the courts, especially in more recent years, have actually excluded claims that Aboriginal communities were bringing on the basis that there wasn't really a negative impact from the government decision. And I would say early on in the case law there actually was a tendency to see the duty to consult as triggered very easily and there's been a bit more caution about some of that in more recent years.

So just to give an example, an early sale of certain types of mineral rights in certain provinces takes place, where all that's happening is that they're giving a particular company a right to carry out further exploration and be the only company that can do that and can acquire further rights later on to actually carry out work on those minerals.

And there was a decision in the Saskatchewan Court of Appeals where they ended up saying that that early sale didn't trigger the duty to consult because there was no actual impact of that stage and that any impact on treaty rights, which were all on the surface, would only take place if the company actually carried on to carry out work on the surface, and to do so it would be applying for later permits to do that.

And there was actually evidence before the court that in lots of instances companies acquired these rights and then ended up not later exercising them. Maybe market conditions changed or they changed their exploration program strategy, and so they ended up not deciding to use that right that they had initially purchased in the ways that they could have. And because they would apply for later permits, that early decision didn't actually trigger the duty to consult.

Or there have been some creative arguments by some Aboriginal communities where they tried to say that particular large-scale decisions had an impact potentially on their rights. The negotiation of an investment agreement between Canada and China was argued in the BC courts, and the courts there ended up rejecting that and saying that there was no evidence that that was actually having a potential effect on Aboriginal rights down the road as the community claimed.

So there have been instances where there have been claims rejected in the courts over this, but I'd say in general terms the duty to consult is triggered relatively easily where there's a government decision that could affect Aboriginal or treaty rights. Now, there's a separate test that looks at, "What does the government have to do under the duty to consult that's triggered?" and the requirements can vary a lot.

There's a so-called spectrum analysis that the requirements of what they have to do range from simply giving notice of the chance to respond at the lower end on through to very extensive consultations and accommodations, what's sometimes called the deeper end of the spectrum. So it's triggered relatively easily, but what is triggered will vary a lot based on the circumstances.

One other key exception, though, to the idea of it being triggered is the point that you asked about in terms of "Is it triggered by historical effect?" There it's very important to say, "No, it's not." It's not a duty that looks back in history. It's a duty that's looking at the forward-looking impacts of government decisions today, so if there was a dam built 50 years ago that today we would say triggers the duty to consult if that were being built today, there's no duty to consult issue about that.

Maybe there's some other issues that can be pursued by the Aboriginal community in terms of litigation about that dam, but there's no duty to consult issue. Now, if there's a relicensing of the dam, you might ask, "Well, now do you look at the existence of the dam as giving rise to duty to consult?" Again, the answer is no, you're just looking at the forward-looking impact of the government decision, and so again you wouldn't look at construction of the dam.

It's already there. You'd be looking at the forward-looking impact on Aboriginal or treaty rights of the ongoing operation of the dam versus if you just stopped operating it or something like that. So it is focused on "What are the potential future impacts of a government decision today?" Where there may be an impact on Aboriginal or treaty rights, that is actually triggered relatively easily, but then what's required under it varies enormously based on this spectrum test that gives rise to very different requirements in different situations.

Speaker 4: Thanks. That's very clarifying. I'd just like to ask a quick follow-up question. You use the term Aboriginal communities, so these would be the people to whom the duty is owed. Are the courts very clear on who those communities are or is there some disagreement?

Dwight Newman: Okay. This is an important question. First of all, I'll say I'm using the word "Aboriginal" in part because that's the legal term in Canada's constitution. In Section 35, the term "Aboriginal Peoples of Canada" is used and is defined, to refer in the language used in that instrument, to Indian, Inuit, and Métis communities in Canada. In place of Indian, we're usually using the word "First Nations" today.

In a lot of discussions, the word “Indigenous” is being used, and sometimes I've used that word as well. And certainly that, in the Canadian context, means the same thing as Aboriginal, but internationally it's a more widely used term. And this I say just to clarify why I'm maybe switching between terms at time, but the legal term under the constitution is Aboriginal.

Under the case law that our courts have developed, they've ended up saying that all Aboriginal rights in Canada are collectively held, and there's been a bit of controversy on that. There was one case in the Supreme Court of Canada about five years ago where there were arguments being put, including by some aboriginal communities, that there might be some individually-held Aboriginal rights, but the courts have insisted on saying that all Aboriginal rights are held by Aboriginal communities and not by individuals.

That might change some day in future, but right now that's the decision. Then the duty to consult is owed by the Crown, as I said before, not by industry or others, but it's owed by the Crown to Aboriginal communities whose rights might be affected. So those could be First Nations or what used to be Indian Bands and so on under the Indian Act, but they're usually called First Nations.

It could be Métis communities. It could be Inuit communities. In the context of First Nations and Inuit communities, I would say there's quite a bit of clarity on who the communities are. On Métis communities, there are some legal controversies in Canada today about claims by communities out in parts of the east of Canada, especially in Quebec and the Atlantic provinces.

And there have been a few cases, there are a few others being litigated on whether particular communities are Métis communities or not and some really tough controversies there. One of the challenges that does arise is "Who's entitled to speak for a particular community or who its representatives are?" And there are some complexities on that. There's more legal structure around First Nations communities in Canada than Métis communities, for example.

And that's partly an interference by government in the communities in the past in some instances, but that gives a lot of clarity in some parts of the country, and then it gives rise to particular controversy in some other parts of the country, and we actually saw that recently in British Columbia with some of the discussion around the liquid natural gas pipeline there and the controversies in the Wet'suwet'en community.

There, as in a number of British Columbia First Nations, there are rival claims by elected leaders under the Indian Act or elected leaders under some procedure and hereditary leaders who might traditionally have held power. In some communities, those two groups of leaders tend to be in agreement. In some others, they're more divided, and you get a complicated situation there of who actually speaks on behalf of the rights held by the community. But it is a consultation with Aboriginal communities, and there are a lot of situations where this is pretty clear. We do end up with some situations where things get a bit more complicated.

Speaker 5: Thank you. I want to turn now to a more historical look, so I was wondering if you could explain some key historical events, specifically some case law that has been critical for the evolution as well as the continued development of duty to consult.

Dwight Newman: Okay. Thinking back in the big legal developments that have mattered to the duty to consult and particularly the cases, we need to start, I think, with 1982 and the Constitutional provision, Section 35 of the Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights. That's the source of a lot of the case law that comes after that, so I think we just need to start with that.

After that, you get a period of various case laws on Aboriginal and treaty rights over the next couple of decades, the next few decades, prior to really the development of the duty to consult in its full form that we're talking about today. But in the 1980s and the 1990s especially, there were a number of cases, some of which mentioned consultation, but in a very different context of one of the considerations you might look at when a government was trying to justify an infringement on or a limitation of an Aboriginal right.

So you had the Sparrow Case in 1990 that mentioned consultations as one of those factors, the [Gelgamuth 00:31:40] Case in 1997 that again mentioned consultations as one of the factors that might be looked at there. Some other language around this that you might see the courts as building upon in these later cases that I'm going to say are the big strand of duty to consult case law, those come in 2004, 2005 in a set of three cases that we might call the duty to consult trilogy.

Haida Nation is the best known of those in 2004. Another case released the same day doesn't get quite as much attention: the Taku River Tlingits Case. The Haida Nation Case saw the courts say that there had been a violation of the duty to consult in the circumstances of the case. The Taku River Case released the same day saw the courts say the duty to consult had been matched in the circumstances of that case.

So they're actually an important contrast and they see the court releasing decisions about impacts on Aboriginal rights when they're enunciating this duty that show what didn't work and what did work. Then the next year, 2005, there was a case brought by the Mikisew Cree, and this is different from the Mikisew Cree case that I mentioned a little earlier in relation to consultation on legislative action.

Mikisew Cree 2005, the court ended up extending the duty to consult to the treaty rights context. So Haida Nation really sets out a lot of the rules on the duty to consult. Chief Justice McLachlin there sets out the main structure of the duty, sets out the legal tests that I've mentioned in terms of when it's triggered and what the depth of it is and says a lot about it there.

There were still questions that remained after that, though, and so these issues percolated up through the lower courts again. And then around 2010, 2011, the Supreme Court of Canada engaged with some of these ambiguities that it hadn't solved before. I'd say the big case at that point is the Rio Tinto Case. It deals with some technical questions that are probably more technical than listeners want to hear too much about in terms of what administrative tribunals and boards could or couldn't do on the duty to consult.

It's also a case where the court ended up saying that historical effects didn't trigger the duty to consult, a point that we mentioned earlier. And it's a case where they said, "Well, early strategic decisions might trigger the duty to consult." Those were sort of side points. The big issue was around administrative boards and tribunals.

That issue still didn’t get sorted out totally, and it ended up back at the Supreme Court of Canada in 2017 in a couple of decisions about the National Energy Board: the Clyde River decision coming from Nunavut and the Chippewas of the Thames decision coming from Southern Ontario. They were both about issues around National Energy Board approval of pipelines, and they were significant duty to consult decisions.

Like Haida Nation and Taku River, you had contrasting decisions out the same day, in which the Supreme Court of Canada in one case said the government had met the duty to consult and in the other in which they said they hadn't. The Clyde River Case showed some failures in meeting the duty to consult. The Chippewas of the Thames Case almost reads like how you could go about fulfilling the duty to consult in an administrative tribunal context.

And then the subsequent case is this more recent case on whether the duty to consult is triggered by legislative action. Is it triggered when parliament or legislature is crafting a law and going to pass a statute? And that's the Mikisew Cree 2018 decision that ended up saying no, that that doesn't arise and there's not a duty to consult in those circumstances.

So those are the big Supreme Court of Canada cases that are developing the law. If we were talking about significant duty to consult cases, there are also some prominent lower-court decisions that people would have heard about as well, partly because they include instances of projects actually ultimately seeming to struggle because of the duty to consult. And in both cases the decision wasn't appealed up to the Supreme Court of Canada.

One of those is the Northern Gateway decision in the Federal Court of Appeals in 2016, or sometimes it could also be called the Gitxaala Nation decision, and that would be the formal name of it in the courts. The other one would be the Federal Court of Appeals decision on the Trans Mountain Project, and that would be formally under the name of the Tsleil-Waututh First Nation.

There had been a process in the National Energy Board Act where the National Energy Board or a joint review panel makes a recommendation and then there's a final stage of consideration and then the Governor General Council or the Federal Cabinet, in effect, makes a decision. In both of those instances, the Federal Cabinet made that decision, and in both of them, the court ended up saying that at that very last stage, between the National Energy Board decision and the Cabinet decision, there were further things the government should have done in respect of consultation at that stage, even though everything up until then had been good.

And the result in Northern Gateway was that the project got canceled, in effect, because by the time the court decision came out, the government had changed to a government that wasn't particularly inclined to support that decision. The Trans Mountain Case is interesting because so much legal uncertainty got created about it that even before the court decision there were a lot of controversies around it.

Because of what the Province of British Columbia was doing, the company was becoming very nervous, so we actually ended up seeing the federal government buy out the project and then face this decision also that there were inadequacies in consultation, and so they're headed back to carrying out further consultation on that as we speak and should be in the latter stages of that. Those would be two applications of it. In terms of the development of the law, I would highlight those various Supreme Court of Canada decisions and then two big cases where projects struggled in the context of an application of it.

They are somewhat the exception, but they're very significant exceptions simply because of the size of them and the amount of money that was spent to end up suddenly having a project canceled, in a sense. In Northern Gateway, miners were saying that the company spent probably in the range of $500 million to get things to that stage and then saw it just vanish because the government was said not to have done certain final steps under the duty to consult.

The spending on Trans Mountain on the regulatory process may have been even larger than that, and the federal government, as I say, ended up having to buy out the project to remove regulatory uncertainty, or at least that was the decision they ended up making in terms of removing regulatory uncertainty, so pretty significant consequences in both of those. And the regulatory uncertainty on the second was a mixture of things, but partly involved the consultation with Indigenous communities.

Speaker 6: Thank you, Professor Newman. What happens if the court determines the duty to consult is inadequate?

Dwight Newman: You're asking there a question about remedy: "If a court says that what was done during the duty to consult was inadequate, what does the court end up doing?" The typical response would be that they're going to end up saying, "Go back and do the consultation again or whatever you need to do to complete the adequacy of the consultation." And the result of that is, before the project can go forward, the government needs to go and do that.

The court may also formally quash a certificate of approval that's been granted and say, "Well, you have to go back, do the consultation with an open mind, and then remake the decision." The practical consequence could be that the project doesn't move forward in some cases. If the government goes back and does further consultation and identifies a problem that they hadn't realized was there before, they might decide not to go forward, or they might end up carrying out the further consultation and then making the same decision that they did or a modified version of it that has more accommodation for the Aboriginal or treaty rights issues at stake.

That would be the main remedy that's granted for inadequate consultation. If there's something else that occurs without proper consultation, if things were to get further along, the construction had started, there might be some different remedy that arises. In some instances, there might be damages payable. In some instances, maybe a court would still say a project has to stop part way through.

There have been some court decisions that have had some quite unconstrained language in that respect. On the other hand, I'd be surprised to see that result as a remedy, but there are various things that courts could end up doing if the government were to proceed without consulting. But where it's inadequate, the usual remedy is that they're sent back to make it adequate before they go forward.

Brady Deaton: Dwight, I'm conscious of the time, and I'm so appreciative of this discussion so far, and I've really learned a lot. And I feel like ... I hesitate to ask you to kind of look in your crystal ball and look forward a little bit, but I think I'd like to end on maybe asking specifically of something like Bill C-262, which appears to be an attempt to harmonize national laws with the United Nations Declaration of the Rights of Indigenous Peoples. How do you think that might affect duty to consult? But looking forward even further, how do you except this issue will play itself out? Are there any other areas that we should be thinking about?

Dwight Newman: Okay. In respect of Bill C-262, as of this day that we're recording things here, Bill C-262 has passed the House of Commons a while ago and is in the Senate and has received, up to now, government support after the government switched its view on that a little while back. It's a private member's bill that has several different provisions in it, but that ends up saying that the United Nations Declaration on the Rights of Indigenous Peoples is part of international human rights law and has application in Canada.

Now, what that language means is actually quite unclear. It's not the sort of language that's usually use in a statute, and so I'll come back to that. The other parts of it talk about that the government needs to develop an action plan in terms of bringing Canadian law into harmony with the UN Declaration on the Rights of Indigenous Peoples.

In respect of consultation, the main argument, under duty to consult, the main argument that some will make is that the United Nations Declaration on the Rights of Indigenous Peoples moves things towards consent rather than consultation, and so closer to something that some might characterize as a veto power. Now, there can be a lot of different things to talk about there because the UN Declaration on the Rights of Indigenous Peoples, when it talks about consent, is really talking about situations where there is a right, not where there's a right claimed as under the Canadian duty to consult doctrine.

So if there is a statutory adoption of the declaration and there are moves on it in the courts and/or legislative processes as a result, we might see a strengthening of circumstances in which consent is required and where an Indigenous community has to agree before a project can move forward. In practical terms, that's actually sometimes happening anyway. There are a lot of Indigenous communities that are supportive of development and that are entering into what are called impact/benefit agreements with industry. And when that's present, really there is an agreement. And in some ways, industry is doing that because there's a lot of uncertainty, so they resolve it by entering into an agreement, but that kind of thing might become more mandatory if we saw movement on Bill C-262 or if we saw some other move in Canadian law more towards this idea of consent. And there have been arguments just in the courts for a move in that direction.

There are a lot of different scenarios that could play out there, and so I'll just offer that as some general reflections there. There are those kinds of controversies around duty to consult. The other thing, though, that we could see happening is duty to consult might not apply to all the situations it does right now, depending what the courts did with it. If it moved to be something more about consent and less about managing uncertainty, maybe they won't apply it to all the same situations of uncertainties that they do right now.

But at a broader level, setting aside the possible impacts of the UN Declaration on the Rights of Indigenous Peoples, and their significance and worth people watching, what are some of the other things that might play out in relation to the duty to consult? I think we might see governments wanting to get more certainty on what's required under it because there have been some real surprises in the context of decisions like Northern Gateway and the Trans Mountain Project.

The governments involved were trying to facilitate those projects getting done. At the last stage, they did what they thought was required, and then the courts came back and said there was more that needed to be done, and that creates huge delay and problems. And I think some governments in Canada might end up wanting to take some steps to clarify what's required under the duty to consult.

Maybe they'll try to do more things through legislation. Maybe they'll try to get the courts to say more. But that's really about, "What are the contents of it?" That's not totally uncertain. There is that spectrum analysis I mentioned earlier, but that is the spot within the duty to consult that I think there's a a lot of lingering uncertainty on, is "What exactly is required under it in different situations?"

The other big development that I think is something to watch for, and it reaches maybe beyond the topic at hand here, but as there are other aboriginal or treaty rights recognized that go beyond the natural resources context that we're talking about here for the most part or things that get affected by natural resource development, it's worth highlighting that the duty to consult applies in the context of any Aboriginal right or treaty right.

And those could include other rights that are different than those we are talking about thus far: things like Aboriginal rights in the child welfare context or treaty rights that might be struck in some of the self-government agreements that have been negotiated that could end up giving rise to the duty to consult on other issues altogether.

Unless there's some major change in the law to the duty to consult, it's going to come to apply to some other things where we haven't been hearing about it before, and so that's a development to watch for as well. Those most interested in the natural resource context will be interested in those questions of achieving greater certainty on what exactly is required and obviously as well in terms of the developments about the declaration.

And those thinking about the duty to consult just in broader terms will also want to watch for its application in other areas altogether. So those would be some of the things that I would highlight, but there's a lot going on even today around the duty to consult, and those capture just a few of the developments we might see.

Brady Deaton: Professor Newman, thank you. Thank you very much for taking the time to talk with us today and thanks very much for your research in this area.

Dwight Newman: Thank you.

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Brady: Thanks for joining us at FARE Talk. We hope you will continue to check our website for updates and the latest podcast.

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