It’s been almost 20 years since the Supreme Court of Canada first ruled that the Constitutional protection of Indigenous rights requires governments to consult in “good faith” with Indigenous peoples so that their concerns can be “substantially” addressed before decisions are made that could affect their rights.
While the federal, provincial and territorial governments now all accept that there is a duty to consult, their interpretation of this duty is often so narrow and impoverished that serious concerns over the impact of planned development are simply ignored. Rather than being a source of reconciliation and rights protection as intended in decisions like Delgamuukw (1997) and Haida Nation (2004), the duty to consult as applied by governments in Canada has been a source of ongoing conflict with projects like Northern Gateway and the Site C dam all ending up in court at tremendous cost to Indigenous peoples.
This week, three critical cases before the Supreme Court of Canada will again shine the spotlight on the need for an interpretation of consultation that lives up to the high standard of protection of Indigenous rights intended by the Constitution, historic and contemporary treaties, and international human rights law.
The Inuit hamlet of Clyde River is challenging the National Energy Board of Canada (NEB) decision to allow seismic exploration for oil and gas off the coast of Baffin Island. The NEB relied on ‘consultations’ carried out by the exploration companies. Inuit leaders argue that the hurried process and the failure to translate key documents into Inuktitut excluded effective participation of elders and that the concerns of Inuit hunters about the impact of seismic testing on marine life were never properly considered.
In a case that is being heard jointly with Clyde River, the Chippewas of the Thames First Nation in southern Ontario is challenging the NEB approval for plans to transport oil sands bitumen across their traditional territory. In this case, consultation and accommodation effectively fell into a gap between the NEB, which said that government had the ultimate responsibility to determine whether consultation was adequate, and the government which left the decision in the hands of NEB.
Also this week, the Supreme Court will hear a case brought forward by the Ktunaxa Nation Council in the southern BC interior who are opposing the construction of a ski resort on a sacred site. The Ktunaxa case primarily involves protection of the exercise of religious freedoms under the Canadian Charter, but the Ktunaxa are also arguing that the consultation process failed for not giving these concerns adequate attention.
In all of these cases, the projects were approved without the consent of affected Indigenous peoples.
As originally framed by the Supreme Court, the duty to consult was a response to the longstanding failure of Canadian laws and regulations to recognize and properly protect the rights of Indigenous peoples. The duty to consult calls on government to work proactively to integrate Indigenous perspectives into the decision-making process and ensure that their rights and interests were protected, even if unresolved land claims or other factors create gaps in the legal recognition of these rights.
In the 1997 Delgamuukw decision, the Supreme Court said that the obligation to substantially protect the rights of Indigenous peoples is so significant that in some cases the “full consent” of Indigenous peoples would be required. This spectrum, with the requirement of consent for the most serious decisions, was reaffirmed by the Supreme Court in the 2004 Haida Nation decision.
International human rights law has similarly advanced a vision of consultation as a mechanism for meaningful involvement of Indigenous peoples in the decision-making process, with free, prior and informed consent required when the ability of Indigenous peoples to live off the land and maintain their cultures and identities is at stake.
The repeated failure of governments in Canada to live up to the obligations established by Canadian courts and international law is a form of discrimination and a direct continuation of Canada’s colonial history.
Amnesty International stands with the Inuit of Clyde River, the Chippewas of the Thames, and the Ktunaxa Nation Council as they ask the Supreme Court to uphold an interpretation of consultation that includes rigorous protection of their rights.
We also stand with Indigenous peoples throughout Canada in demanding that governments abandon their antagonist approach of trying to minimize their responsibilities toward Indigenous peoples, and instead put the promise of reconciliation into practice by ensuring that Indigenous peoples are not only heard, but are actually listened to in all decisions where their lands, cultures, and livelihoods are at stake.