The Duty to Consult in Canada Post-Haida Nation

2.1 The trigger

In Haida the Court suggested that “the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it …”.¹⁸ The threshold for triggering the duty is therefore low.¹⁹ The test has three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.²⁰ The duty may be triggered by more abstract decisions (such as the transfer of a resource licence as was the case in Haida, or the determination of a total allowable harvest or cut²¹), or by more concrete decisions such as the grant of a cutting or harvesting permit, or a drilling licence with respect to specific lands.²² The duty may also be triggered by “high-level managerial or policy decisions that may potentially affect the future exploitation of a resource to the detriment of Aboriginal claimants.”²³

It may not always be easy to say whether particular Crown conduct triggers the duty to consult, especially where there are multiple decisions to be made before physical activities will occur within the traditional territory of an Indigenous community. For example, there is a line of cases to the effect that the grant of a Crown property interest such as an oil and gas lease will not trigger the duty to consult but that a decision to grant a drilling licence to authorize drilling activity on that lease will trigger the duty.²⁴

The Court addressed the extent to which legislative decisions (e.g. the introduction and passage of new legislation or new regulations) may trigger the duty to consult in Mikisew Cree (No 2) in 2018.²⁵ While at least some members of the Court confirmed that a decision to promulgate delegated legislation (e.g. new regulations) might trigger the duty to consult,²⁶ the majority was firmly of the view that the adoption of new legislation that might adversely affect an aboriginal or treaty right or a claim to title would not trigger a duty to consult. The different opinions that constitute the majority gave several reasons for this conclusion. For Justice Karakatsanis the doctrines of the separation of powers and parliamentary sovereignty trumped any such duty. Each branch of government (the courts, the legislative branch and the executive) would be unable to fulfil its function if interfered with by another branch.²⁷

Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature, even if such a duty were only enforced post-enactment. The duty to consult jurisprudence has developed a spectrum of consultation requirements that fit in the context of administrative decision-making processes. Directly transposing such executive requirements into the legislative context would be an inappropriate constraint on legislatures’ ability to control their own processes.²⁸

Justice Brown for his part was of the view that the development and enactment of new legislation was not, strictly speaking, Crown conduct that could attract the duty within the meaning of Haida.²⁹ This conclusion was based on the assertion that Crown conduct, as used in Haida, must be confined to the executive branch and could not extend to the legislative branch or to the courts. Finally, Justice Rowe offered several practical obstacles that would need to be resolved were the duty to apply to the legislative process³⁰ noting that “(t)he courts are ill-equipped to deal with the procedural complexities of the legislative process.”³¹

While the opinions of the various members of the Court reveal a variety of different views with only two justices in favour of applying the duty to consult to the legislative process,³² it is also notable that none of the judgments reference Article 19 of the UN Declaration.³³ Article 19 draws no distinction between legislative (parliamentary) measures and delegated legislation (regulations made by the executive drawing upon authority conferred by parliament):

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Despite the Court’s position on the inapplicability of the duty to consult to the parliamentary legislative process, the Court was unanimously of the view that if the resulting legislation infringed an aboriginal or treaty right, such legislation “will be a nullity and will not authorize any regulatory action” unless the Crown could meet the Sparrow justifiable infringement test.³⁴ And as part of that the Court also acknowledged that consultation, or the absence thereof, would be a relevant part of the justifiable infringement analysis.³⁵

The duty to consult is triggered by the potential adverse effects that may flow from the decision that is being considered. Consequently, where the possible decision involves an amendment to the operation of an existing facility, the duty only applies to the consequences of the amendment; it does not apply to the existing facility.³⁶ It is also evident that the third element of the trigger requires that there be “a causal connection between the proposed Crown conduct and a potential adverse impact on an Aboriginal claim or right.”³⁷ Hence, in Carrier Sekani the Court concluded that the Crown conduct in that case (execution of an energy purchase agreement) of a hydro facility) would not alter the operation of an existing hydro generation facility and therefore there could be no impact on the claims of the Indigenous community.³⁸

2.2 The content of the duty

The content of the duty varies with the “strength of the claim and the circumstances”³⁹ but “(i)n general terms … the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”⁴⁰ There is therefore a spectrum:

At one end … lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty … may be to give notice, disclose information, and discuss any issues raised in response to the notice. …⁴¹

At the other … lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision.⁴²

In cases engaging treaties and modern land claims agreements rather than an asserted aboriginal title or rights claim, the Crown must recognize that it is dealing with established rights, although the scope and content of the duty may be affected by the specificity of the promise.⁴³

Given that the depth of the duty to consult varies with the strength of the claim it will ordinarily be necessary at the outset for the Crown to conduct a strength of claim assessment and to communicate the results of that assessment to the Indigenous community.⁴⁴ In some cases, however, courts have relaxed that requirement where there is evidence of real engagement.⁴⁵

Consultation is not just another form of project assessment but must engage with the effect of the project on the rights of the Indigenous community and must be demonstrably responsive to the concerns of the community.⁴⁶ The Crown must inform itself as to the impact of a proposed project on the rights of the community, communicate those findings to the community and deal with the community “in good faith and with the intention of substantially addressing” articulated concerns.⁴⁷ Consultation is not just an “opportunity to blow off steam” and “[c]consultation that excludes from the outset any form of accommodation would be meaningless.”⁴⁸ Indigenous rights and interests cannot be conflated with the interests and concerns of other stakeholders.⁴⁹ If the record shows that the relevant decision maker required no changes to the project configuration, or included no additional terms and conditions on a project approval, it may be difficult to establish that the decision maker truly engaged with the rights and concerns of the community.⁵⁰

Finally, in terms of content, all levels of court have emphasised that the right to be consulted does not afford affected Indigenous communities a veto over proposed new projects.⁵¹ To put it another way, the right to be consulted does not require that government or a project proponent obtain the consent of the community before a project can be allowed to proceed. At least, that is, unless the Indigenous community has title to the project lands required, in which case Indigenous consent will be required.⁵² In sum, where a community has yet to prove its claim to the satisfaction of settler society, the duty is a duty to consult; but where the community has established a title the government or developer must obtain the community’s consent to proceed.

2.3 Who has the duty to consult and accommodate?

It is the Crown contemplating “the conduct” that might adversely affect the Aboriginal right or title or treaty right that has the responsibility to discharge the duty to consult and accommodate. Within the Canadian federal system that Crown might be the Crown in right of Canada (i.e. the federal government), or the Crown in right of a Province (i.e. a provincial government),⁵³ or both with respect to some projects.⁵⁴ While this seems fairly straightforward, it must also be recognized that governments organize themselves in different ways in order to make decisions with respect to resource projects. For example, a government (e.g. the government of the Province of Saskatchewan) may direct that the relevant line Department or Minister is the party responsible for licensing new oil and gas wells,⁵⁵ whereas another jurisdiction (e.g. the government of the province of Alberta) may give this responsibility to an independent administrative tribunal (the Alberta Energy Regulator (AER)).⁵⁶ That tribunal may have final decision-making authority or it may only have the power to make recommendations.⁵⁷ The same diversity of approach may be seen for other types of decisions, such as decisions to approve the construction of new pipelines or new dams.

The manner in which a government organizes the discharge of its permitting authority cannot be used to avoid a constitutional duty to consult and accommodate,⁵⁸ but the case law suggests that the involvement of independent administrative tribunals complicates the allocation and discharge of the duty. Questions that have arisen in this context include the following: (1) Does the administrative tribunal itself have a duty to consult and accommodate? (2) Can the tribunal’s procedures be relied upon by the Crown to discharge the Crown’s duty to consult and accommodate? (3) Does the tribunal have the authority (and perhaps the duty) to assess whether the Crown has discharged its obligations with respect to the duty to consult and accommodate before making a decision?

A leading decision on these issues is Rio Tinto Alcan Inc v Carrier Sekani Tribal Council (Carrier Sekani).⁵⁹ The case involved an application to a provincial energy regulator (the British Columbia Utilities Commission (BCUC)) by a provincial Crown corporation, BC Hydro, for approval of an energy purchase agreement (EPA) that it had entered into with Alcan, the operator of a hydro facility within the traditional territory of the Carrier Sekani. The Court noted that the Crown could delegate its duty to consult to an administrative tribunal and could also give that tribunal the power and responsibility to determine if the Crown’s consultation obligations have been fulfilled.⁶⁰ Whether the government has done so are questions of statutory interpretation and thus the answers are contingent – what did Parliament (or the provincial legislature) intend, either expressly or implicitly?⁶¹ The Court concluded that a tribunal will generally have the power to assess whether or not the Crown has fulfilled its constitutional obligations to consult and accommodate if the tribunal’s statute gives it the authority to determine questions of law, unless some other provision removes from it the power to determine questions of constitutional law generally (or more specifically removes its power to resolve questions pertaining to aboriginal consultation).⁶² In Carrier Sekani the Court concluded that while the Commission had the authority to assess whether there was a duty to consult, and if so whether that duty had been satisfied, it did not itself have the duty to consult,⁶³ that responsibility remained with the Crown in its executive capacity.

Where a regulator does have consultation responsibilities and where it is the final decision-maker for a project, the Crown may be entitled to wholly rely on the consultation activities carried out by the regulator so long as that regulator has the jurisdiction to consider the full suite of concerns raised by the Indigenous community.⁶⁴ Where a regulator is only responsible for making a recommendation to cabinet, cabinet may have additional consultation and accommodation obligations to discharge before it can make a final decision.⁶⁵ Furthermore, insofar as cabinet’s responsibilities may extend beyond the narrow jurisdiction of a particular regulator, the scope of cabinet’s consultation and accommodation responsibilities may be broader than that of the regulator making the recommendation.⁶⁶

Another issue concerns the role of the proponent in the discharge of the duty to consult and accommodate. The case law has consistently confirmed that it is the Crown and not the proponent that has the duty to consult and accommodate.⁶⁷ At the same time, the case law also confirms that “(t)he Crown may delegate procedural aspects of consultation to industry proponents”.⁶⁸ In practice both federal and provincial governments delegate many consultation activities to project proponents.

2.4 Judicial supervision of the duty to consult and accommodate: the standard of review

The Courts will always be in a position to supervise the discharge of the duty to consult and accommodate based on the applicable standard of review. Trigger questions, including the depth of consultation required, are questions of law that will generally be evaluated on the basis of correctness, with the qualification that such decisions are in part premised on an assessment of the facts for which some judicial deference may be appropriate.⁶⁹ The consultation process itself will be evaluated on the basis of reasonableness. ⁷⁰ Perfection is not required.⁷¹ Where a decision maker has concluded that it has discharged its obligation, a reviewing court will focus on the reasonableness of that conclusion rather than conducting its own assessment of the merits of the consultation activities.⁷²

2.5 What are the remedies for breach?

One remedy for breach is simply a judicial declaration that the Crown has failed to fulfill its obligations.⁷³ It should follow from this that the Indigenous community should also be entitled to a declaration that any decision made without fulfilling the duty to consult is void.⁷⁴ That may not mean the end of the project since, in accordance with general administrative law principles, the relevant decision maker will typically have the opportunity to cure the identified deficiencies.⁷⁵ Such was the case, for example, with the Trans Mountain Expansion project (TMX). The Federal Court of Appeal quashed the original Order in Council approving the project in its Tsleil-Waututh decision.⁷⁶ The federal government then sought to address the deficiencies identified by the Court both through further review by the regulator, the National Energy Board, and through more direct engagement with First Nations with territories along the route of this linear project. While the second Order in Council approving the project was also subject to an application for judicial review in Coldwater, the Federal Court of Appeal in that case considered that the Governor in Council could reasonably conclude “that the consultation efforts made after [Tsleil-Waututh] adequately remedied the identified flaws.”⁷⁷

In rare cases legislative amendments will be required in order to operationalize the duty to consult and to correct systemic issues in the permitting process.⁷⁸

2.6 The duty to accommodate

The case law to date has tended to focus on the duty to consult rather than the duty to accommodate, and indeed the Supreme Court has emphasised that the duty “guarantees a process and not a particular result.”⁷⁹ Accommodation is most likely to take the form of changes in the configuration of a project or additional terms and conditions. For example, in Ktunaxa Nation the Supreme Court noted that “many accommodations” had been made for Ktunaxa spiritual concerns. These included removing one proposed chair lift in order to protect grizzly bear populations and confining the development to the upper half of the valley as well as “extensive environment reserves and monitoring.”⁸⁰ Accommodation is unlikely to result in a decision to reject a proposed project since that would be the equivalent of granting injunctive relief even before proof of an asserted claim.⁸¹ In Ktunaxa Nation the First Nation took the position that the proposed ski development site was part of a sacred site known to the Ktunaxa as Qat’muk and that the sacred nature of the site entailed that permanent construction should be banned. The court characterized this as a claim for a “specific accommodation”⁸² further noting that the Crown “did not offer the ultimate accommodation demanded by the Ktunaxa”.⁸³ But this did not mean that the Crown had breached its duty to consult and accommodate even though there had been no reconciliation. Reconciliation may not always be possible, the duty to consult and accommodate does not afford “a right to a particular outcome”, but rather that “[t]he process is one of ‘give and take’.”⁸⁴

Accommodation measures may go beyond the imposition of terms and conditions for a specific project and address the cumulative effects of different projects on Indigenous rights and on the environment. This was the case, for example, with respect to the TMX project. In directing issuance of a project certificate for the second time, Cabinet undertook to implement a number of recommendations designed to address the cumulative impact of increased shipping (project and non-project) within the Salish Sea.⁸⁵

2.7 Critiques of the duty to consult and accommodate

To this point, this paper has largely provided a descriptive and doctrinal account of the duty to consult and accommodate. This concluding subsection canvasses some of the critiques of the duty. Professors Hamilton and Nichols have offered what is perhaps the most far-reaching critique. They point out that the theoretical underpinnings of the duty to consult and accommodate are founded upon ideas of reconciliation and the honour of the Crown, ideas which in turn are premised on the recognition by the Courts of de facto Crown sovereignty.⁸⁶ They contend that the judicial acknowledgement of Crown sovereignty (without questioning the legitimacy of that assumption of sovereignty) makes it easy for the Court to conclude that there can be no Indigenous veto. But the implications of this assumption are far reaching because it “forces Aboriginal peoples into a sovereign-to-subjects framework”⁸⁷ rather than a nation-to-nation relationship and “maintains a systemic power imbalance”⁸⁸ and Crown “unilateralism”.⁸⁹ Hamilton and Nichols contrast the Court’s approach to the relationship between the Crown and Indigenous communities with the Court’s approach to the relationship between the federal government and the subjects of the federation as articulated in the Quebec Secession Reference,⁹⁰ which the authors describe as a jurisdictional or a negotiation model. Were that model applied to the relationship between Indigenous communities and the Crown, it would entail the recognition of indigenous communities as “peoples who are in a complicated multinational federal relationship with the Crown”⁹¹ within which the Courts would mediate a negotiated relationship between the three orders of government.

Other critiques are more particular. Ariss and colleagues, for example, identify four main concerns.⁹² First, they point to the risks associated with the widespread delegation of the Crown’s consultation obligations to industry. They observe that this may serve to blur the nation-to-nation relationship, and also note that Indigenous communities may have a broad range of interests and issues that cannot be dealt with by a proponent.⁹³ A second concern relates to the availability of adequate resources “to ensure that an Aboriginal community can participate meaningfully in consultation.”⁹⁴ Although funding is typically made available for consultation with respect to major projects, there is always a question as to its adequacy. But there are also concerns that communities may be overwhelmed by the ‘demand’ for consultation in areas of intense resource exploration, or where there are different resource activities present in the area (e.g. coal mining, oil and gas activities and forestry operations).⁹⁵ A third area of concern relates to the scope of accommodation obligations. Should our understanding of accommodation obligations be informed by a weighing of project benefits versus effects on Indigenous interests, or should it be informed by more principled ideas such as the obligation to minimize adverse effects on indigenous interests?⁹⁶ A fourth concern deals with the connection between the duty to consult and accommodate and FPIC. I address this in more detail in part 3 of this article. Finally, the authors reference the issue of inequality of bargaining power. While this resembles part of the critique mounted by Hamilton and Nichols, Ariss et al.’s objection is framed in more technical terms than ultimate Crown unilateralism and the absence of a veto. Instead, Ariss et al. choose to emphasise issues such as access to legal and other expert resources and the fact that industry is likely to be more experienced in negotiations and can learn as a repeat player from past experiences.⁹⁷

2.8 Conclusions

The duty to consult and accommodate has become the principal means in Canadian law for insisting that Indigenous interests are taken into account in government project-related decision-making. To that end the duty serves to protect rights and title claims that have yet to be adjudicated by courts, as well as rights recognized and confirmed by treaties or land claims agreements or by judicial declaration. Good faith implementation of the duty generally requires demonstrable integration of Indigenous interests in government decisions, but it does not afford Indigenous communities a veto over projects proposed within the traditional territories of those communities unless the community has a recognized title to the land concerned.

The next part of the paper turns to consider the international standard of free, prior and informed consent (FPIC), especially as articulated in the UN Declaration.

3.1 The UNDRIP FPIC Provisions

The first such reference is found in Article 10 and deals with the forcible removal and relocation. The first sentence states that Indigenous peoples shall not be forcibly removed from their lands and territories while the second sentence goes on to provide that:

No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

The second reference is in Article 11(2). Article 11 is generally concerned with Indigenous cultural rights. Article 11(2) specifically addresses state obligations to effect redress where cultural property has been taken without the free, prior and informed consent of the peoples concerned. This provision is, in a sense, backward looking; the absence of FPIC historically triggers the present duty to provide some form of redress such as restitution. The third FPIC reference is found in Article 19 and deals with the adoption of legislative and administrative measures that may affect Indigenous peoples. I have already quoted this article above in the context of Mikisew Cree (No 2). This is the first FPIC reference in the Declaration to yoke together ideas of consultation and FPIC.

Article 28, the fourth FPIC reference, bears some similarities to Article 11(2). The overall topic of Article 28 is redress for the loss of lands, territories and resource. The trigger for the duty to redress is the historical circumstance that such lands, territories or resources were taken without the free, prior and informed consent of the peoples concerned.

If Articles 11 and 28 adopt a similar FPIC formulation, the same can be said for Articles 10 and 29. Article 29 is generally concerned with the protection of the environment. Within that, Article 29(2) adopts an FPIC provision to address the specific issue of the storage or disposal of hazardous substances. It provides as follows:

States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

Finally, there is Article 32(2), which deals with FPIC in the context of resource projects that may affect the lands and territories of Indigenous peoples. This time the FPIC formulation follows that of Article 19 and provides as follows:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

It is apparent from this overview that the Declaration adopts three different FPIC formulations: first, there is the strong FPIC formulation of Articles 10 and 29 (relocation and chemicals); second, two articles provide that the failure to observe FPIC historically serves as a trigger for redress (Articles 11(2) and 28(1)); and third, there is FPIC as a goal within a consultation framework (Articles 19 and 32(2)) (i.e. consult in order to obtain FPIC).¹⁰⁰

It is important to observe that all of the rights articulated in the Declaration have to be read in the context of the entire Declaration.¹⁰¹ Of particular note here is Article 46(2), which suggests that rights may be subject to limitations but only where such limitations “are determined by law and in accordance with international human rights obligations.” Furthermore,

Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

This provision on the limitation of rights protected by the instrument has precursors in other international human rights instruments, although such provisions are usually more limited in their scope.¹⁰² Scheinin and Åhrén offer the opinion, drawing on the interpretive comments on the Human Rights Committee, that it is possible to generalize as to the requirements “for permissible limitations on human rights”.¹⁰³ In summary, a permissible limitation must: (1) have a proper legal basis, (2) have a legitimate aim, (3) respect the core right subject to limitation, (4) demonstrate necessity, and (5) demonstrate proportionality.¹⁰⁴

With this overview in mind, the balance of this section focuses on the interpretation of the FPIC formulation in Article 32(2) of the Declaration.¹⁰⁵

In analyzing this provision, it is important to read the sentence as a whole rather than simply fastening on to the FPIC language in the middle of the clause. Read in its entirety, the paragraph imposes a compound obligation on a state to consult and cooperate in order to obtain FPIC from the indigenous peoples concerned prior to approving a project affecting their lands, territories and resources. The paragraph does not provide (as per the language of Article 29(2) in the context of hazardous materials, or the language of Article 10 on relocation) that a state shall ensure that no project that affects an indigenous peoples’ lands, territories and resources can be approved without their FPIC. Article 32(2) therefore falls short of stipulating that FPIC is a condition precedent to the approval of any such project, but it does require the state’s good faith consultation and cooperative efforts directed at obtaining FPIC.¹⁰⁶ Furthermore, reading Article 32(2) together with other relevant rules of international law suggests that FPIC might be required in some circumstances. In particular, the general comment¹⁰⁷ and decisions of the Human Rights Committee¹⁰⁸ under Article 27 of the International Covenant on Civil and Political Rights¹⁰⁹ suggest that a project, either alone or in conjunction with others (i.e. its cumulative impact), that serves to deny an Indigenous community access to the necessary material elements of its culture would require the consent of that community or would otherwise have to be justified on the basis of compelling necessity.¹¹⁰ The same might also be the case if Indigenous title lands had to be acquired (i.e. expropriation) to allow a project to proceed.¹¹¹

How does this understanding of the Declaration and more general international law compare with the position under domestic law as articulated in Part 2 of this article? Under the current law, a proposed project located on recognized title lands will require Indigenous consent or it will have to meet the justifiable infringement test laid down in Sparrow.¹¹² That test, especially as informed by the subsequent case law,¹¹³ is less stringent than that entailed by Article 46(2) of the Declaration and too heavily weighted in favour of settler society ideas of the public interest.¹¹⁴

If the project involves territory for which there is an outstanding but unresolved claim as to title, the applicable law is the duty to consult and accommodate. This has a more variable content than that prescribed by the Declaration and is not directly aimed at securing FPIC.¹¹⁵

3.2 Implementation of the Declaration in Canadian Law

Canada voted against the adoption of the Declaration in the General Assembly, later offering its lukewarm endorsement¹¹⁶ before finally becoming a “full supporter of the Declaration, without qualification.”¹¹⁷ That unqualified political endorsement, however, does not itself serve to make the Declaration part of Canadian law. The Declaration can only have direct effect in Canadian law to the extent that the various provisions represent customary international law or to the extent that the Declaration is implemented by relevant federal and provincial laws.¹¹⁸ Domestic implementation of the Declaration has a prominent position in the Calls to Action of Canada’s Truth and Reconciliation Commission,¹¹⁹ and some Canadian jurisdictions, most notably at the federal level and in British Columbia, have heeded that call, at least to some degree. While the effort to adopt federal legislation¹²⁰ did not make it through the Senate during the last parliament before parliament dissolved for the upcoming election in September 2019,¹²¹ British Columbia adopted the Declaration on the Rights of Indigenous Peoples Act in November 2019.¹²² That Act falls short of giving the Declaration the force of law in British Columbia, but it does “affirm the application of the Declaration to the laws of British Columbia”.¹²³ This must, at a minimum, mean that the Declaration can be used to influence the interpretation and evolution of domestic law.¹²⁴ To the extent that the standard captured by Article 32(2) and general international law (as described in section 3.1 of this article) differs or may differ from the standard captured by domestic law, it becomes important to consider how these two standards will interact now that the Declaration is “of application” to the laws of British Columbia.

This was the subject of some extended discussion in the Committee proceedings in British Columbia leading to the adoption of the legislation. In the course of that discussion, Minister Fraser, the minister responsible for introducing the legislation, made the following points. First, while the government would still have responsibility for final decisions in relation to projects, it would be important to work collaboratively with Indigenous communities to achieve consensus.¹²⁵ In that context the Minister noted that:¹²⁶

… the UN declaration does not contain the word “veto,” nor does the legislation contemplate or create a veto. So the bill does not limit the right of government to make decisions in the public interest. But there are many decisions where we need to make those decisions with Indigenous peoples. This legislation gives us the tools, I would suggest, to get an orderly, structured and, especially, a transparent process to do just that.

Second, the Minister suggested that the same standard of seeking to achieve consent (but not necessarily obtaining consent) should apply not only to confirmed title lands but also to lands to which title was asserted. This was consistent, in the Minister’s mind, with the direction given by the court in Tsihqot’in.¹²⁷ Third, the government’s approach to implementing Article 32 would be “applied within the constitutional framework of Canada, including Section 35 of the constitution” and the evolving case law on Section 35.¹²⁸

There are clearly mixed messages here and it will ultimately be up to the courts to resolve how to best read together the text of Article 32(2) and the domestic jurisprudence. In my view, the way forward likely requires re-orienting the duty to consult and accommodate towards the objective of obtaining consent, and it may also require enhanced government involvement and less delegation to industry. In addition, the test for justifying the circumstances in which a project can be allowed to proceed where consent may not be obtained will need some adjustment. In particular, it will need to be more centred on respecting Indigenous interests and values, and less oriented towards privileging settler society’s articulation of the public interest.