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20 Sep 2018

Eugene Kung, Policy Options

Commentary: Canadian govt. aims for minimum on indigenous consultation; should start with respect for free, prior & informed consent

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"Canada aims for the minimum on indigenous consultation," 20 Sept 2018

The botched consultation [for the Trans Mountain pipeline expansion] represents a larger systemic failure by Canada.. Canadian federal and provincial governments have long viewed Indigenous peoples with a sort of colonial contempt, treating engagement and rights as a threat and a burden rather than a constitutional and moral duty. More often than not, this resulted in governments seeking to do the least possible, and nothing more. This approach relied on the hope that minimally consulted First Nations would not bring their grievances to court, and the cost of litigation probably did discourage many from suing. 

... The judges identified three key areas where the government failed in its consultation. First, it primarily sent note-takers with no decision-making power to the consultation meetings, which meant there was no opportunity for government and First Nations to collaborate on solutions to the problems raised. Second, the government incorrectly thought it could not depart from the National Energy Board’s findings and recommended conditions, which limited Ottawa’s ability to address concerns about Aboriginal rights and title. Third, the government didn’t share important documents with First Nations in time to allow for meaningful responses before cabinet approved the project... It is possible that the government will appeal the decision to the Supreme Court of Canada, and it has 60 days to do so (from August 30). If Canada does not appeal, it can make a fresh decision after correcting the errors identified by the court — first, the deficient environmental assessment, and second, the failed consultation with the 140 First Nations... Aiming for higher than the minimum means that the starting point of consultation should be the recognition of the inherent rights, never extinguished by Canadian law, for Indigenous peoples to make decisions about what happens to their homelands and territories. It means implementing UNDRIP and respecting free, prior and informed consent.