Because of the mistaken ideas Steve Rennie based his article on ("What 'duty to consult aboriginals' actually means", The Citizen, June 20) I have to once again write to make some fundamental clarifications.
Rennie does stress how important it is to grasp this seemingly new buzz phrase as the Northern Gateway wars begin. But he is simply wrong to suggest that it was the 2004 Supreme Court decision on logging licenses on Haida Gwaii that established this duty. In fact the duty really goes back to the Royal Proclamation of 1763, which committed the Crown to honourable transactions with "Nations or Tribes of Indians."
A more definitive and recent ruling came from the Supreme Court in the 1997 Delgamuukw decision, wherein the learned justices concluded that when there is infringement on Aboriginal rights, "there is always a duty to consult." Look closely at these seemingly simple words: this was not the bench making up new law but rather confirming that the very longstanding relationship between Natives and the Crown had always meant that minimally, consultation was required when indigenous lands were impacted. What precipitated the Haida case in 2004 was that BC violated existing requirements; there was nothing new about the requirements although, for sure, that decision spelled them out to the provincial government like it was six-years-old (apparently necessary for a demonstrably slow bunch of learners.)
Even more important and unfortunately ignored in present discourse, like Steve Rennie's article, is the back half of the same sentence from Delgamuukw: "in most cases, the duty will be significantly deeper than mere consultation." This too does not seem at all difficult or ambiguous - but it has been roundly ignored by the feds , the province and even First Nations themselves. The Supreme Court in Delgamuukw was saying that when public governments make or permit significant infringements, consultation will rarely be enough and that some form of accommodation (which implies mutually agreement on acceptable mitigation and/or compensation measures) is probably going to be essential.
As I have said previously in these pages, it should have been no surprise that BC and Canada would make the minimum requirement of "mere consultation" into a maximum, the most they would try to do. Their busy-body bureaucrats have since spared no effort in narrowing the discussion to "consultation" requirements while keeping the lid on what the Supreme Court really said and mandated. I do hope that as the Northern Gateway project comes under judicial review over the next few years, litigants and judges don't suffer, as governments have post-Delgamuukw, from planned disregard for what that landmark decision really said.
Norman Dale
Prince George
