August 2009

Recent court rulings in Halfway River, Taku River Tlingit, and Douglas have brought consultation standards spiraling down to a single unreturned phone-call.

Participating in consultations with government is a double-edged sword for Aboriginal peoples. We already know that the government and the courts find aboriginal laws of upholding the sustainability and sacredness of the land to be “unreasonable conditions.’ If they do not participate, or walk away, Aboriginal peoples are described as unreasonable – and if they do participate, they are stuck within a process that the government dominates.

Even when Bands or First Nations bring court cases following “negotiations” that disregard their input, their assertion of their own laws and duty to uphold them are unacceptable in BC courts.

Halfway River, 1999, gives us this.

Halfway River contested that logging had infringed their way of life to an unjustifiable extent. The Halfway case found the province free to infringe their Treaty 8. Halfway also concluded in an obligation on the part of Aboriginal peoples to participate in the consultation process, and not frustrate it with such “unreasonable” demands as those of sustainability, regardless of the foregone- conclusion nature of such BC-led procedures.

In Taku River Tlingit, 2005, the Taku River people were suing BC for going ahead with permitting a mining access road over their sacred mountain, right through the hunting grounds. Taku had participated extensively in consultation procedures and the environmental impact assessment. The government did not respect their position that the road had to be redirected, and permitted it as preceded the legal challenge. The court found that Taku had been adequately consulted and accommodated, since they had been part of the development process, and that their proper course of action was to continue in negotiations to mitigate the impact of the road at a site-by-site specific level. This was the first case to test the duty to consult and accommodate, it came down at the same time as Haida.

We have a final angle in Douglas, 2007. It was found that the Department of Fisheries and Oceans had not only fulfilled their duty to consult, but also upheld their obligation to the aboriginal food fishing priority when they opened a sports fishery on Early Stuart sockeye in the Fraser, five years earlier.

The Department had faxed and telephoned a few invitations to meet on the subject to the Cheam Band prior to the openings. Cheam had not been able to participate in the processes on the schedule DFO offered.

Nevermind, the fact that DFO offered them meetings fulfilled their duty to consult and accommodate, ruled the judge. And since the Department has the privilege of managing the fishery, no notices of later management changes were necessary.

What this would seem to mean to BC is that: First Nations must participate in the consultation process; once they have been consulted, anything goes; and as little communication as an unanswered fax and a phone call can accomplish the consultation and justify the decisions made by government ministries. The “meaningful” part of this “consultation and accommodation” is that BC is the boss, anyway.

Are these the parameters of the “shared decision making” contemplated in BC’s proposal for Recognition and Reconciliation Legislation?

“I’ll see you in court!”