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The jurisprudential life of the Crown’s duty to consult with aboriginal people in the interim of the final determination of aboriginal claims is almost a decade long. Since the Supreme Court of Canada’s confirmation of the duty in 2004, First Nations have spent a lot of litigation time and effort trying to determine just how, when, and where they can enforce this duty.
The duty to consult articulated by the Supreme Court of Canada in Haida Nation v. British Columbia in 2004 continues to play an important and prevalent role in the process of Crown-First Nations reconciliation. This paper discusses the state of the law of consultation in 2013.
As this paper suggests, litigation has played and will continue to play an essential role in achieving reconciliation by more clearly defining rights in difficult areas and advancing negotiations on important issues that might otherwise be irreconcilable. In fact, litigation and negotiation can intersect very comfortably with one another and lay groundwork for achieving reconciliation.
On November 3, 2009, the B.C. Supreme Court released its judgment in Ahousaht Nation v. Canada. Madam Justice Garson (now J.A.) concluded that all five Nuu-chah-nulth plaintiffs have aboriginal rights to fish in their traditional territories and sell that fish into the commercial marketplace.
Through a framework developed in R. v. Marshall; R. v. Bernard, and R. v. Sappier the Court has set an analytical framework that focuses on the modernization of aboriginal rights with the objective of making them relevant and meaningful in a modern economy.
When major projects are proposed in their territories, rather than treated as governments with decision making authority, the Crown tends to treat First Nations like any other stakeholder in the environmental assessment process. This paper discusses the Squamish Nation process, which was designed to parallel Crown environmental assessment processes and ensure project impacts on the Nation’s rights and title interests are understood and properly avoided or mitigated
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