26 June 2014

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.