by Smagnis, MMNN Contributor

How often are we seeing Chiefs and Councillors taking industry and Governments to task for “a failure to Consult with us” as it relates to resource development in our territories. This is great but unfortunately the “us” is confined to them and not the community at large.

By way of background, we have seen many significant Court victories since 1980 with one of the most significant being the 1997 Delgamuukw decision. In that case, the Gitxsan fought for their legal right to the land and they won. The case also confirmed that Aboriginal land rights are held communally, which means that decisions regarding the land should be made communally. In effect, First Nations generally have a fiduciary duty to make sure the membership is fully engaged and provided with full information prior to making any decisions that may affect the way of life. The leading case on the Crown`s duty to consult is the Haida Nation v British Columbia (Minister of Forests), [2004] 3 S.C.R. 511. The decision in that case was clear in that the Crown has a duty to consult Aboriginal groups prior to exploiting lands to which they may have claims.

The most recent significant event impacting on the duty to consult was Canada`s adoption of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) which stated that Indigenous People had the right to free, prior and informed consent with respect to Resource Development on their land. It went one step further and added the r ...