Paper: From Consultation to Reconciliation: Aboriginal Rights and the Crown's Duty to Consult - 2000

(Vol. 79 Canadian Bar Review p. 252)

The judiciary has repeatedly called on First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements. It has also held that the Crown is under a duty to consult with a First Nation when it proposes to engage in an action that threatens to interfere with existing Aboriginal or treaty rights recognized and affirmed by s. 35( I) of the Constitution Act, 1982. In this Article, the authors argue that the duty to consult requires the Crown, in most cases, to make good faith efforts to negotiate an agreement specifying the rights of the parties when it seeks to engage in an action that adversely affects Aboriginal interests.

De far;on repetee, la magistrature a fait appel aux Premieres Nations et 11 la C ouronne pour ne pas la surcharger par des litiges sur leurs differends, mais pour essayer plutot d' arriver a des reglements negocies. Les tribunaux ont aussi decide que la Couronne a le devoir de consulter une Premiere Nation quand elle projette de s' engager dans une action qui menace d' entrer en con flit avec des droits des Autochtones ou des droits resultant de traites reconnus par [' article 35, par. I de [' Acte constitutionnel de 1982. Dans cet article les auteurs soutiennent que le devoir de consultation implique que la Couronne, dans la plupart des cas, doit de bonne foi faire des efforts pour negocier une entente specifiant le.s droits des parties, quand elle cherche a s' engager dans une action qui peut affecter les interets des Autochtones.

*Sonia Lawrence, LL.B., M.S.W., University of Toronto, Toronto. Ontario.

** Patrick Macklem. of the Faculty of Law, University of Toronto, Toronto, Ontario.
  The full paper is available via pdf download at the bottom of this page.

l. Introduction

In northern British Columbia, about 50 kilometres south of Prince Rupert, lies Kumealon Lake, a pristine body of water which, together with its surroundings, abounds with fish, other marine life and wildlife. Prior to European contact, ancestors of the Kitkatla First Nation known as the Gitkaxaala people, along with other Aboriginal peoples, used Kumealon Lake and its surrounding lands for activities and practices necessary for its sustenance and survival. To this day, the Kumealon Lake region continues to provide important economic, cultural and spiritual resources to the Kitkatla First Nation in its efforts to maintain its distinctive indigenous identity.

In 1994, International Forest Products Ltd. (Interfor) began to log the Kumealon Lake region under a forest license and several permits conferred by the Government of British Columbia pursuant to the provincial Forestry Act. In 1997, after the Supreme Court of Canada decision in Delgamuukw v. British Columbia,1. the Kitkatla commenced litigation seeking to enjoin Interfor from logging the area. Since commencing its legal action, the Kitkatla have received no less than eleven judgments from the British Columbia Supreme Court and the British Columbia Court of Appeal. Most recently, the Kitkatla was ordered to pay Interfor's costs after they appealed the dissolution of an ex parte injunction and the refusal of the British Columbia Supreme Court to issue another injunction against Interfor's logging in the Kumealon watershed. As of August, 1999, although the Kitkatla have an appeal pending, they do not have an injunction protecting the Kumealon. 2

The Supreme Court of Canada's landmark decision in Delgamuukw v. British Columbia appeared to many observers to establish new constitutional benchmarks in the relationship between the Crown and First Nations. It held that Aboriginal title is protected as a matter of constitutional right, and affirmed that the Crown is under a duty to consult with a First Nation before undertaking action that might interfere with a First Nation's Aboriginal title. The Court's affirmation of the Crown's duty to consult is especially significant in light of repeated judicial calls for First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements. Perhaps the most well-known expression of this sentiment is Lamer C.J.'s statement in Delgamuukw that "[u]ltimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve. ..the basic purpose of s. 35( 1 )-'the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.'"3

But Delgamuukw's call for negotiated settlements and its affirmation of the Crown's duty to consult appear to have had little impact on disputes like the one involving the Kitkatla First Nation and Interfor. In fact, the Kitkatla litigation suggests that the duty to consult has produced the very effect that it was designed to minimize, namely excessive reliance on the judiciary to reconcile competing interests of the parties. Consultation processes, by and large, have not led to lasting settlements. Instead, consultations increasingly serve as a kind of pre-trial discovery process, closely resembling the litigation they were intended to forestall, and constituting the first step in protracted legal disputes.4

Our premise in this Article is that the reason why the duty to consult is failing to accomplish its purpose is because it has been widely misunderstood- by parties, by counsel, and by courts. This misunderstanding arises from a tendency to regard the duty as a legal requirement that assists in determining whether the Crown is constitutionally justified in engaging in a particular action that infringes on an existing Aboriginal or treaty right of a First Nation. That is this one of its functions is no doubt true, but characterizingthe Crown's duty in this manner obscures the extent to which it also operates ex ante to minimize reliance on litigation as a means of recognizing and affirming Aboriginal and treaty rights. Properly understood, the duty to consult also acts as a prelude to a potential infringement of an Aboriginal or treaty right. Consultation requirements ought to be calibrated according to the nature and extent of Aboriginal interests and the severity of the proposed Crown action in order to provide incentives to the parties to reach negotiated agreements. In most cases, the duty requires the Crown to make good faith efforts to negotiate an agreement with the First Nation in question that translates Aboriginal interests adversely affected by the proposed Crown action into binding Aboriginal or treaty rights. By realizing the duty's ex ante possibilities, the judiciary will have more success in its efforts to promote reconciliation between First Nations and the Crown.

1. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

 2. Kitkatla Band v. British Columbia (Minister of Forests), [ 1998] B.C.J. No. 2667 (B.C.S.C.) (June 18, 1998); Kitkatla Band v. British Columbia (Minister of Forests), [1998] B.C.J. No.1652 (B.C.C.A.) (June 24, 1998); KitkatlaBandv.British Columbia (Minister of Forests), [1998] B.C.J. No. 1598 (B.C.C.A.) (June 25, 1998); Kitkatla Band v. British,Columbia (Minister of Forests), [1998] B.C.J. No. 1616 (B.C.S.C.) (June 25, 1998); Kitkatla Band v. British Columbia (Minister of Forests). [1998] B.C.J. No. 1599 (B.C.C.A.) (July 3, 1998); Kitkatla Bandv. British Columbia (Minl.ftl'r nfForl'.ft.f), fl9981 B.C.J. No.1600 (B.C.C.A.) (July 6, 1998); Kitkatla Band v. British Columbia (Minister of Small Business. Tourism and Culturl'),lI99MI B.C.J. No.2440 (B.C.S.C.) (October 21, 1998); Kitkatla Bandv. British Columbia ( Minister of Small Business. Tourism and Culture ), [ 1998] B.C.J .No.3041 (B.C.S.C.) (December 15, 1998); Kitkatla Band v. British Columbia ( Minister of Small Business . Tourism and Culture), [1999] B.C.J. No. 177 (February 2,1999); Kitkatla Band v. British Columbia (Minister of Forests), [1999] B.C.J. No. 1074 (B.C.C.A.) (May 7 , 1999); Kitkatla Band v. British Columbia (Minister of Small Bu.finess. Tourism and Culture), [1999] B.C.J. No. 1684 (B.C.C.A.) (June 15, 1999).

3. Delgamuukw" supra at 1123-24 (quotingR. v. Van der Peet, [1996] 2 S.C.R. 507, at 539). See also R. v. Marshall (unreported decision of the Supreme Court of Canada rendered November 17, 1999), at para. 22 ("the process of ...accommodation ...may best be resolved by consultation and negotiation of a modem agreement for participation in shared resources ...rather than by litigation").

4. See J. Woodward and R.J.M. lanes Fulfilling the Promise of Consultation: Strategies and Tactics in First Nations, The Environment and Development: The Emerging Duty to Consult (Canadian Bar Association -Ontario, 1999 Institute of Continuing Legal Education Conference, January 28-30, 1999). See also J. Woodward, First Nation Empowerment Over Traditional Territories: An End to False Consultation, in Pacific Business & Law Institute, Environmental Law and Canada's First Nations (Conference Proceedings, November 18-19, 1999).


GIS, Some Coast Salish, and a Grilled Grouse

by Russell Collier

Not long ago, I had the pleasure of going to see three different Aboriginal GIS shops and talking with their technical people. The three First Nations' offices I visited were the Sto:Lo Nation, the Tsawassen, and the Tsleil Waututh, located, respectively, in Chilliwack, Delta, and North Vancouver. They are all different, and all three had interesting and exciting things to show off. Additionally, I had something to share back with them. But that's getting ahead of my story.

First stop was the Sto:Lo Nation office, where Leeanna Rhodes and Laura Brown welcomed us into their world with a cheery, non-stop chatter of excitement and interesting stories. Their office is part of a large, well-organised, well-funded government structure, and their work has truly benefited by it. For one thing, they have data - lots of it. For another, they are able to work within a larger vision, and have pretty much an open hand when it comes to fulfilling their piece of the vision.

One of their show-stoppers would have to be their cultural atlas. They have obviously poured heart and soul into getting this project finished. The atlas is being professionally published, incorporating numerous archival photos, charts and graphs, background text, and of course, beautiful maps. When this book comes out, be sure to stop by their office and ask to see the final product. It is impressive.

Also impressive is their grasp of Arc/INFO and Arcview mapping. These ladies know their stuff. I am sure anybody stopping by their place will learn something new and will take away an strong impression of just how good an aboriginal GIS office can be when properly supported.

Next stop was the Tsawassen GIS office, headed up by Andrew. He's a one-man GIS show all by himself. The Tsawassen GIS shop does not have the bells and whistles of the Sto:Lo shop, but it makes up for it in sheer ingenuity. People outside the lower mainland probably know Tsawassen as the site of one of the two big ferry ports in the big city. And this helps define the special characteristics that make the Tsawassen band unlike any other. For one thing, they are surrounded on three sides by Delta, a huge, multi-ethnic city suburb sprawl. For another they are hemmed in by the Pacific Ocean on the fourth side.

This Nation has to deal with a very hefty Urban Treaty orientation, and that has affected their GIS work. Andrew showed us mapping that hints at the complexities of marine resource pitted against city sprawl. Not easy. But a worthy challenge.

The Tsawassen have worked with UBC to develop a TUS MS-Access database that allows Tsawassen members to access their data from anywhere within their network, and query it. This group (and Andrew) is ample evidence that being an urban Nation with limited budget does not necessarily mean limited imagination or lack of inspiration. Andrew shows a hungry and opportunistic spirit in acquiring and using GIS technology. Thank you, Andrew. I'd happily geek with you any day of the week.

Next stop was the Tsleil Waututh GIS shop in North Vancouver. Actually, the tables were turned this day, as I was teaching an introductory session on using high-end desk-top publishing software to finish off GIS produced graphics. You see, the Tsleil Waututh have this Atlas. It's a Bioregional Atlas. Pioneered by Doug Aberly, the bioregional approach to mapping permits decision-makers to understand land usage across a sufficiently broad spectrum of land uses such that they get a reasonably full picture.

The Tsleil Waututh have had GIS guy Mike George working alongside Ecotrust's GIS guru gal, Leah McMillin to produce their Atlas. Leah has moved on to other futures in her hometown of Victoria, and the Tsleil Waututh have hired another GIS guru gal to help out - Siobhan Murphy (help me if I spelt your name wrong). It's pronounced phonetically as "shi VOHN" and it's as Irish as you get.

Mike and Siobhan have direction from the Tsleil Waututh leadership to explore producing their Atlas using in-house desktop publishing techniques and software. An atlas is expensive to produce at best of times, and anything that can be done in-house is worth exploring. I walked the group of us, Tsleil Waututh, Tsawassen, visiting Heiltsuk and Ecotrust GIS reps, through exporting graphic map images from ArcView into a variety of formats that a truly Canadian product, CorelDraw, can handle. And then I worked with the images to show text, photo, vector, bitmap, and database handling capabilities offered by that truly Canadian DTP product. The Tsleil Waututh Atlas project offers much promise and interest for some months to come.

So what about the Grilled Grouse? How does that fit in? I was hoping you'd ask. As a car-load of us headed off to Chilliwack and the Sto:Lo, bright-eyed and bushy-tailed, but alas, without breakfast, we became increasingly hungry. With a fine disregard for the many Ronald MacDonald and Tim Horton's Doughnuts places we passed, Ecotrust driver, David Carruthers insisted on driving as fast as possible by these abodes of dining splendour.

En route, to while away the hungry, hungry hours, we instead dwelt upon such possible road-kill delights as Pressed Porcupine, boiled Moose Nose, Diesel-Smoked Deer, and who could forget…Grilled Grouse. This last dish is particularly easy to prepare…it's where the Grouse flying across the road becomes embedded in your car Grill, and becomes both wind-dried and roasted in one simple step. Thank you David for finding a way for us to share so many great ideas for unusual but probably fulfilling breakfast ideas hour after hour after hour…next time, I think I'll bring a sandwich.

And if any of you out there have innovative breakfast ideas of your own, please feel free to share them with us here at the Aboriginal Mapping Network.


GIS, the Ifugao, and a Moose

by Russell Collier

She starts out by saying, "Go to the people with your GIS and see what happens". That was the first advice Rhodora M. Gonzalez got from Prof. Röling when he saw her proposal. She wanted to do research on indigenous knowledge in natural resource management and formalise it into a geographic information system for development planners. And thus begins the remarkable journey of Rhodora and the Ifugao people of the Phillipines as they explored participatory use and development of a GIS in joint-learning about the environment.

And thus also begins a remarkable book, entitled "Platforms and Terraces: Bridging participation and GIS in joint-learning for watershed management with the Ifugaos of the Phillipines" (ISBN 90-5808-246-6). The book is inspiring for its clarity, its inclusion of many maps, charts, and diagrams, as well as for its highly organized content. Rhodora Gonzalez engaged with the Ifugao in what she termed a "spatial dialogue" in order to elicit knowledge of their traditional agricultural practices, and then to design a geographical information system that worked for these people. She says, "The starting point in developing an information system is understanding the process it will strengthen". She also says that, in order to construct a model to understand how their traditional natural resource management works, it is crucial to involve the people in the design process, and it is crucial because it determines whose world view is served by the created information system.

The book is © 2000 Rhodora M. Gonzalez, and represents her thesis to fulfill the requirements for her doctoral degree. This is a book I urge GIS users and TEK researchers, aboriginal or not, to acquire, read and take heart from, if you can find it. Because it is a thesis book, no matter how good it is, and it is a very good book, it may be difficult to lay your hands on a copy.

All is not lost however! We have a new book available that is drawn from experience much closer to home, that is geared to helping us conduct our own credible research, and that can be downloaded from this very same site today!

He starts out by saying, "Aboriginal peoples in Canada have been mapping aspects of their cultures for more than a generation". The sidebar reads, "Think of it as the geography of oral tradition". This is a book written from "nearly two decades of experience designing land use and occupancy mapping projects, and working with indigenous peoples at the community level to collect the data they need".Written and © 2000 by Terry N. Tobias, he had one purpose in mind - create a practical guidebook, and make it relevant to Canadian Aboriginals. And he does that admirably. It's also good reading.

And thus begins another remarkable book, entitled, "Chief Kerry's Moose: A guidebook to land use and occupancy mapping, research design, and data collection" ISBN 1-896866-04-2. This book is inspiring for its clarity of writing as well - but drawing from examples much closer to home, often showing or naming people we recognise. This book strikes an immediate chord for those of us engaged in this kind of work.

Reading through the eight chapters, you can't help but notice Terry comes back to the same message, time and again: pay attention to methodology and detail. That's a good message. Provincial and Federal land use planners and decision makers are obligated to consult with First Nations in BC. They are not obligated to act on that consultation. Often, we hear our elders describe an area they remember so well, they could just about draw you a map. I've made a lot of maps, and so I can tell you from my own experience, it is easy to make a bad map. It is much more work to make a good map, and it takes a lot of really hard work to make an excellent map. This is a book that will help you capture that elder's map, and get it with such high quality standards, it will be much harder for people to ignore. Using this book, you will also find yourself connecting better with people in your own community, especially the elders, you will find yourself fascinated as your own rich history comes alive, and you will find yourself taking much well-earned pride in knowing you have done a good job and done it right!

The book is a joint publication of the Union of BC Indian Chiefs and Ecotrust Canada. You can find it on this site under the Publications section. It is about $15.00 to buy a full colour book, or you can download the file yourself for free in PDF format. It is well worth the time. Oh. Who is Chief Kerry and what does his moose have to do with anything? You'll just have to read the book and find out.


Certifying sustainability

By Russell Collier