Moving Backwards: Does the Lack of Duty to Consult Create the Right to Infringe Aboriginal and Treaty Rights?

Abstract

The federal and provincial governments have a duty to consult Aboriginal people when they propose to authorize development activities that may impact Aboriginal or treaty rights.

This article comments on two recent cases addressing the role of third parties, such as municipalities and private businesses, in the duty to consult and accommodate. In Neskonlith Indian Band v Salmon Arm City and Wahgoshig First Nation v Solid Gold Resources Corp, the courts focused on whether the particular entity had a duty to consult. The consequence of finding no duty to consult was that the activity in dispute could proceed. This case commentary argues that the courts conflate who has the duty to consult and whether consultation is necessary before a project can proceed. These are two separate legal issues. Consultation is a condition precedent to proceeding with a project that infringes or potentially infringes Aboriginal rights.

A revised version of this paper is now available as: Shin Imai & Ashley Stacey, “Municipalities and the Duty to Consult Aboriginal Peoples: A Case Comment on Neskonlith Indian Band v Salmon Arm (City)” pp 293-311, (2014) 47:1 UBC L Rev 293.

Keywords: duty to consult and accommodate, First Nations, Aboriginal rights, municipality, mining company, municipality, treaty rights