For people on the Prairies, especially those living in rural areas, the term “duty to consult” will become an increasingly important part of discussion in the years and decades ahead.Some people living on First Nations land still don’t fully understand this principle, which was confirmed in two Supreme Court rulings in 2006. My assumption is that the non-indigenous public is a lot further in the dark about this obligation.Government, at least in Manitoba, is in a state of denial, and among businesses the degree of awareness is a mixed bag.The 2006 rulings left some questions unanswered, but on one point the Supreme Court was clear: governments have a responsibility to consult First Nations on economic development that occurs on traditional territories.A lot of Canadians don’t understand what is meant by traditional territories.These are lands outside the boundaries of an Indian reserve that had been used by indigenous people prior to signing of treaties. In the case of crown lands, this use often continued post-treaty as well.The definition of traditional territories and obligations, entailed in duty to consult, will be determined in much greater detail in the future by the Canadian court system, but the principle of the consultation requirement is here to stay.The 2006 rulings did not set out specific measures that must take place to satisfy the consultation requirement. It just said that consultation with First Nations must be sincere.Governments cannot get away with stating that a project is being planned, hold a few meetings and then plow ahead with plans in the face of First Nations opposition.This requirement applies to activities like mining, which occur right on traditional lands, as well to projects that cross these lands, such as oil pipelines and electrical transmission lines.Private businesses and crown corporations do not have the power to satisfy the consultation requirement. The legal duty rests with government. This duty cannot be delegated, sold off or farmed out.Some readers may remember how First Nations belonging to Treaties 4 and 6 blocked work on pipeline construction projects in Saskatchewan last year. The provincial government wrongly contended the consultation requirement did not apply to activities on what they termed private land.The blockade east of Regina ended after First Nations and Enbridge Pipeline reached an interim agreement where the pipeline company enabled First Nations people to increase their degree of participation in the project.It would be wrong to read too much into the details of the interim settlement, which was reached between the pipeline company and the Treaty Nations. Agreements negotiated outside of the court system don’t have legal precedence.What was significant was that a major corporation in the oil business understood that it was in a new era – one where First Nations approval was required for projects that pass through Treaty territories.The Saskatchewan government has denied the need to consult First Nations about developments passing through private property and the Manitoba government has taken a muddled and confusing stance, but large corporations are beginning to understand this new reality.The reason that corporations – at least some of them – see the need for First Nations support is they want to proceed knowing that projects won’t be physically blocked or tied up in legal wrangling.When governments refuse to acknowledge their duty, corporations are left in a state of uncertainty and might try to arrange their own agreements with First Nations.
Read Also
Higher farmland taxes for investors could solve two problems
The highest education and health care land tax would be for landlords, including investment companies, with no family ties to the land.
