PHOTO:
REUTERS
10 LEXPERT
|
2016
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WWW.LEXPERT.CA
IT'S A CENTR AL truth of Canadian Confederation that the
standing of First Nations has been determined far more by hard-
fought court battles than by fair-minded government legislation.
In the face of government inertia, Aboriginal groups have waged
a seemingly endless fight to define and protect their traditional ter-
ritories and hereditary rights. In recent years that fight has been
marked by a string of First Nations' victories. Among the most nota-
ble have been the 2014 Tsilhqot'in decision of the Supreme Court of
Canada, the first recognition of Aboriginal title over specific lands,
and by the Federal Court of Appeal's Gitxaala decision in June of
this year, overturning Ottawa's approval of the $7.9-billion North-
ern Gateway pipeline project.
In Gitxaala, the Federal Court excoriated the previous federal
government for its failure to fulfill its legally binding obligation
to consult First Nations before cabinet approved Gateway: "Miss-
ing was a real and sustained effort to pursue meaningful two-way
dialogue," the court said. "Missing was someone from Canada's side
empowered to do more than take notes — someone able to respond
meaningfully at some point." Examining those notes, the court
found important errors in documenting the concerns of First Na-
tions. Most damningly, the court found no evidence First Nations'
outstanding concerns were considered or responded to in any way
by cabinet prior to making its decision to approve Gateway.
Hearing
without
Listening
The recent appeal court
decision in Gitxaala takes
government to task for
attempting to reduce
Aboriginal consultation
to a bureaucratic exercise.
Rather, consultation must
be meaningful
By Brian Burton
ABORIGINAL CONSULTATION
