The William Case and Consultation: The Shift towards Free, Prior and Informed Consent

In delivering the Supreme Court of Canada's judgment in the Roger William case, Chief Justice Beverley McLachlin shifted the Court's focus away from its earlier statements in Haida Nation assuring the Province that the right of Aboriginal groups to be consulted about projects potentially affecting their claimed Aboriginal title lands did not give them a veto over such projects and in the direction of the international law standard of consulting to obtain their free, prior and informed consent.   She even went so far as to remark on the advisability - for the Province, Canada, and even project proponents - of  "obtaining the consent of the interested Aboriginal group" where Aboriginal title is potentially at stake.

Here are her two key statements explaining the aforesaid advisability:

92  Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.

 ...

97  I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

Although of less moment than the decision to grant the Tsilhqot'in a declaration of Aboriginal title, the Chief Justice's and hence the Court's openness to criticism and persuasion to move towards the international law standard of free, prior and informed consent should not go unacknowledged or unappreciated.

For my criticism of the position originally staked out by the Chief Justice in Haida Nation, see my earlier post, Consultation and Free, Prior, and Informed Consent.

The Supreme Court of Canada's Decision in the Roger William Case: The Common Law, Aboriginal Title, and Reconciliation

Whatever our reservations about the capacity of the common law to do justice to Aboriginal peoples, we should not lay blame on the common law for the British Columbia Court of Appeal's decision in the Roger William case. Although the Court of Appeal invoked the common law in advancing an approach to Aboriginal title that every First Nation in Canada subsequently found abhorrent, in reality it relied on considerations extrinsic to the common law to justify its desired conclusions. We won't know until later this morning, when the Supreme Court of Canada releases its reasons for decision in the William case, whether the Court has seen through the Court of Appeal's talk of the common law. At stake is not only whether Aboriginal title has any remaining value in the struggle for the reconciliation of Aboriginal and non-Aboriginal peoples in Canada but also whether the reconciliation achieved may be genuine and just.

The Enbridge Northern Gateway Project Joint Review Panel: What's Reasonable?

Missed by most of those who had been keeping track of the Enbridge Northern Gateway Joint Review Panel process was the Panel’s unstated assumption that the opposition of those First Nations whose distinctive ways of life, health, social institutions, and economies remain intertwined with their marine environments, and who thus see Enbridge’s project, especially its introduction of bitumen tankers into their waters, as a serious threat to their futures, is unreasonable. The Panel’s unstated correlative was that because, in its final estimation, Enbridge had “the science” on its side, its position was the benchmark of reasonableness.

But what is reasonable? I don’t pose the question as a skeptic, only to make a few common sense observations and draw some direct conclusions.

Except when they journey into the further reaches of their disciplines, mathematicians and physicists don’t often pose the question, What is reasonable? They – and we – are well past the stage, if it ever existed, where we wonder whether it is reasonable to say that “four” is the result of adding two to two.

Similarly, composers don’t tend to ask whether it is reasonable (or not) to use a diminished chord in a composition. The same holds for painters and other artists working with their own media.

The question is most suited to areas of practical concern; politics, law, and, most fundamentally, our everyday ethical/moral deliberations.

There is a reason for this. While science may go some way in telling us the probabilities of minor, middling and major oil tanker spills in British Columbia's coastal waters, it has nothing determinative to offer on whether we should or should not take the risk. Science can't tell us - and I'm not implying that conscientious scientists would tell us - that we should accept the risk of serious adverse effects on our coastal marine environment, and the communities who depend on it, where it more likely than not won't materialize. (Note that this is a legal not a scientific standard of proof.) Science can't even tell us whether we should accept such risk where the probabilities are lower. Answers to these questions come from the sphere of practical reason; ethics, politics, law, etc.

Obviously, we should and do rely on science in our efforts to get to the truth about things like the probabilities of oil tanker spills. But to believe that science can tell us whether the risks are reasonable and thus worth taking is puerile, at best. In such circumstances, the calming invocation of the phrase "sound science", in an effort to claim the mantel of reasonableness in the public's imagination, is misdirection.

As the Enbridge Northern Gateway Project Panel would have it, “the science” settled what’s reasonable. In consequence, it tacitly held that those coastal (and other) First Nations who looked at the project, deliberated about it in terms of their own political, legal and ethical traditions, and concluded that it poses an existential and therefore unacceptable threat to their societies and cultures were unreasonable. It was on this basis, fundamentally, that the Panel downplayed and thus dismissed the evidence that these First Nations provided on not only the likelihood but also the significance of the adverse effects that Enbridge’s project would visit upon them.

There are several choice but just words one might use to describe what the Panel did. I’ll leave mine unstated.