Supreme Court chief justice Beverly McLachlin`s words carry the thump of the gavel but in her 2004 decision Haida Nation v. British Columbia they offer a noble vision of how a young country can relate to the ancient peoples with whom it shares a home.
"The government's duty to consult with Aboriginal peoples and accomodate their interests is grounded in the honour of the Crown... [That honour] is not a mere incantation, but rather a core precept that finds its application in concrete practices."
Yet, as Stephen Harper and his cabinet slow roll their way to yes on Enbridge`s Northern Gateway pipeline after years of lip service, eye-rolling and missteps over that duty to consult with B.C. First Nations, McLachlin`s words stand as a rebuke to a government that has all but doomed the controversial project to years of limbo before her judicial colleagues.
Harper`s Tories will no doubt gnash their teeth at unelected powers and the supposed special status of aboriginals. But as First Nations besiege Northern Gateway with legal action, it's worth noting it didn`t have to be this way.
According to the Tyee, section 35 of the Constitution Act of 1982 recognized ``existing aboriginal and treaty rights``; in the 1997 Supreme Court decision Delgamuukw v. British Columbia those rights were tied to the land; two more cases in the mid-2000s - the Haida and Taku River Tlingit decisions - said First Nations did not have a blanket veto on matters affecting those rights and the land they claimed but government had a duty to consult and accomodate First Nations on such matters.
As McLachlin puts it so eloquently the duty to consult mechanism works when the government acts honourably in concrete ways to talk with First Nations on issues like resource development. Unfortunately, government and Enbridge is trying to pull off that duty like a college kid cramming the night before a final exam.
Take for example Natural Resources minister Greg Rickford. The Canadian Press reports he`s recently opened a federal office in Vancouver to engage First Nations on major projects; announced a forum bringing together First Nations, the province and the feds on energy matters; addressed an aboriginal summit.
The office and the forum suggestion come from a late 2013 report from Doug Eyford, a special envoy appointed by Harper on Western energy issues. Among his other recommendations, he questions why the federal government engages with project proponents like Enbridge before regulatory processes start but not First Nations - an unfortunate observation from an envoy appointed three years after Enbridge filed its application to build the pipeline in a report filed 14 days before the government`s joint review panel recommended Northern Gateway go ahead.
More unfortunate still, in the 2005 Mikisew decision, the Supreme Court added more detail to the duty to consult by saying the Crown must engage with First Nations at the earliest stages of development and the results must be factored into government planning.
And it`s not as if they didn`t have opportunities for early work. In 2006, then-Canadian environment minister Rona Ambrose announced a federally Joint Review Panel would review Northern Gateway. The Carrier-Sekani Tribal Council, among others, saw the panel as incapable of dealing with their issues and wanted a separate panel, focused on aboriginal rights and title.
That October the council filed a lawsuit against the feds. Enbridge effectively nullified the lawsuit by delaying the pipeline but in 2008 Northern Gateway went back on the front burner and the Tories returned to the joint review process. According to the Canadian Press the government was adamant - ``it would not support a process for aboriginal consultation separate from the [joint review process.]"
Harper`s Tories will no doubt argue that while they might have been a little late with the consultations, they tried hard. But the government's hamstringing of the JRP process through legislation to its blatant cheerleading for pipeline projects like the Keystone XL makes it difficult to say it takes its duty to consult seriously. The easiest example is CP's report on Natural Resources minister Joe Oliver, who, one day before the JRP public hearings process began, branded pipeline opponents as "radicals" attempting to "hijack" the process with cash from "foreign special interest groups."
Oliver, now finance minister, was up to his old tricks this week - as Rickford was attempting to jerry rig a credible approach to aboriginal concerns, Oliver was in Montreal warning of the "consequences of not moving our resources to tidewater."
With the relationship between the federal government and First Nations so broken on the pipeline, Northern Gateway seems destined to be the next chapter of the legal saga that began with Delgamuukw seventeen years ago. To a certain extent, First Nations don't have to prove anything; they're simply not happy with the process. The government has to prove its efforts were both honourable and that First Nations should be happy with the process.
Good luck with that. See you in court, Prime Minister.
