The Duty to Consult Does not Harm First Nations -Does the Federal Government Need to Consult on Bill C-33

On May 6th, the Globe and Mail ran an article entitled “Why the Duty to consult may be harming aboriginal Communities”. This article needs to be responded to as it concludes that because the federal government cannot possibly consult with 633 First Nations and that consultation should take place with the Assembly of First Nations with a person like A-in-chut, Shawn Atleo. Any other method stops effective reform for children.  The article also says any First Nation person who says the federal government needs to consult with 633 First Nations is “radical.” This article is so far out of whack that I really need to clarify the duty to consult.

The duty to consult actually arose in the Sparrow case in 1990 that was a decision of the Supreme Court of Canada that also set out a justification test- that is when rights can be infringed.  It was then raised again in 1977 in the Delgamuukw decision at the Supreme Court of Canada.  Delgamuukw did say that in some cases mere consultation had to be deeper and the consent of the aboriginal nation would be needed. It was not until the Haida and Taku decisions at the Supreme Court of Canada that both the provincial and federal governments started taking the duty to consult seriously. The duty to consult was never meant to harm First Nations rather it was to protect rights and title from the actions of the Crown.

When does Duty to Consult Arise?

The duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal rights or title and contemplates conduct that might adversely affect it.  In the instance of the First Nations Control of First Nations Education, the right to jurisdiction over education, the right to education, the right to education in culture and language are all rights that could be affected and the Crown is aware of the potential impact of their actions on these rights.

Does the Federal Government have to consult on legislation?  In the Rio Tinto vs. Carrier Sekani decision again before the Supreme Court of Canada, the justices said “Thus the duty to consult extends to “strategic, higher level decisions” that may have an impact on Aboriginal claims and rights. The Courts have never ruled on what a strategic higher level decision is but if the higher level decision/law will potentially adversely affect First Nation rights-there should be consultations or even the right of consent if the decision or law will destroy a First Nation right. 

Who does the Crown Consult With?

 The Crown must consult with the rights holder, the Nation whose rights that will be negatively affected by the action of the Crown.  AFN is an advocacy organization of the First Nations across Canada.  It is not a person, or a First Nation, and does not hold the rights of the First Nation nor the ability to consult on behalf of any First Nation. The First Nations are the only ones that can be consulted on issues that will affect their rights and interests. Thus, the Crown must consult with all 633 First Nations with respect to actions that will impact their rights or in the case of Bill C-33 First Nations who have schools on reserve or who plan to have schools on reserve. It may be a large number to consult with, but if the government works with First Nations to establish a process, their work could be much easier. Instead, they try and create short cuts like consulting AFN or not consulting at all which results in court cases, protests and direct action.

Not Radical for First Nations people to insist all First Nations Consulted

It is not radical by any means that 633 First Nations must be consulted when legislation is proposed that will negatively affect their rights, it is the law.  There are several cases being heard or awaiting decisions that will further define the responsibility of the Federal Government to consult on laws that will negatively affect First Nations rights.   

The Globe and Mail article by Dwight Newman says that “…some interpretations of consultation obligations urged by more radical voices in the Aboriginal community may actually harm Aboriginal communities themselves.” I strongly question how having every First Nation consulted harms aboriginal communities.  I assume he is talking about how long it will take to consult or in the case of Bill C-33 the delay and whether the Federal Government can satisfy all the interests of First Nations across Canada.  He says another generation of children will be subject to being in a dysfunction system if the Federal Government has to consult with all 633 First Nations.  You would be surprised how quickly First Nations would respond to come together collectively to work on a First Nations Education Act or propose alternatives to an Act and how that could be done.

Possible Actions 

Possibly First Nations individually, or in a group of First Nations that voluntarily come together can negotiate their own agreements on jurisdiction over education. It has already happened with Sechelt First Nation, the modern day treaties, and the BC First Nations came together to do an Act specifically for BC.  Lack of sufficient federal funds stymied that initiative.

 Or First Nations could come up with a law that allows for each First Nation to exercise their jurisdiction without Ministerial interference and imposition of values that are not First Nations. A process was put in place to jointly draft the Specific Claims legislation, it can be done again and this ensures First Nations involvement with a process to continually work with all First Nations on the content of a law so their would be support for such a law.

 Innovative and acceptable solutions can be found when all First Nations are consulted and their needs taken into account and addressed in a good way.

 First Nations can be empowered by taking advantage of situations where positive action can result in education on reserve that meets the needs of youth looking to enter the work force, leadership, post secondary institutions, and many other walks of life.  This is after all about our youth. First Nations have the answers and must be part of the process on Education on reserve.

I have discussed Canadian law but I also realize that the Declaration of Indigenous Rights has several provisions regarding the free prior and informed consent of indigenous peoples. I have phrased that as the right to say No. The Declaration is not a binding document but it does set an international norm and one day Canada will have to live up to obtaining the free prior and informed consent of each First Nation. I look forward to that day especially in First Nations education on reserve.

 Putting Bill C-33 on hold gives First Nations time to strategize next steps and be very organized in approaching the Minister of Aboriginal Affairs collectively and individually or other groups, and one can only hope he will listen and work with First Nations on moving forward and not move into an all out battle over a Bill that falls short of First Nations expectations and needs.










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