“Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgements of this Court, that we will achieve […] a basic purpose of s. 35(1) – ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.’ Let us face it, we are all here to stay.”
Supreme Court of Canada Chief Justice Antonio Lamer’s words in the 1997 case of Delgamuuk v. British Columbia elicit the principles central to Aboriginal rights law. Section 35(1) of our Constitution provides that “the existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.” Our courts have held that the fundamental objective of aboriginal rights law is the reconciliation of aboriginal and non-aboriginal peoples and their respective claims, interests and ambitions.
Infrastructure projects and industrial activities often affect Aboriginal groups whose rights must be protected in accordance with the Constitution. When the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights, it has a duty to consult and, where appropriate, accommodate these rights. This duty stems from the Crown’s unique relationship with Aboriginal peoples and forms part of the process of reconciliation. How these principles translate to practice has been the subject of much debate and litigation.
The Federal Court of Appeal recently applied these concepts in Gitxaala Nation v. Canada, 2016 FCA 187, leave to appeal ref’d, which concerned the Northern Gateway Pipeline (NGP) project. The Federal Court of Appeal determined that Canada failed to meet its obligation to adequately consult First Nations affected by the NGP project. Practically speaking, this halted the project’s progress while the Governor in Counsel (GIC) was ordered to reconsider the matter in light of the court’s judgement. Gitxaala highlights the importance of Aboriginal consultation in infrastructure projects.
On November 29, 2016, the Canadian government announced that the NGP will not be proceeding. As such, the GIC will no longer be tasked with reconsidering the project. However, parties dealing with Aboriginal consultation in future infrastructure projects will undoubtedly look to the court’s reasoning in Gitxaala Nation for guidance, including on the Trans Mountain Pipeline project.