Canadian Lawyer

T ���We���re trying to expand the duty to consult.��� Naiomi Metallic, Halifax indigenous peoples . . . in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them��� ��� clashes with the Canadian Constitution, which requires a balancing of individual and collective rights. In the end, the government signed on, saying it was better to be a signatory with stated concerns, rather than reject the declaration outright. Initial resistance to the declaration, however, indicated the federal government and First Nations were on a potential collision course over developing natural resources ��� a clash that has been highlighted in recent years. Osgoode���s Imai and Gordon Christie, an aboriginal law professor at UBC, contend that tension between First Nations and the Harper government also is fuelling aboriginal desire to test their rights in the legal arena. ���The government is not at all shy about saying we need to get to the resources,��� says Imai. ���It���s a very aggressive agenda and that ties into consultation and that the federal government has a duty to protect the land of aboriginal people.��� Christie says the existence of the duty to consult, combined with First Nations��� frustration with the government���s pursuit of resource development, ���has created a bit of an industry��� in the legal realm. I ndeed, Ottawa���s ���Responsible Resource Development��� plan for extraction of natural resources, a key element of last year���s federal budget, has thrust aboriginal concerns into the public eye. The government produced two pieces of legislation aboriginals say reduced environmental land protection ��� both of which were central to the recent Idle No More protests. The legislation is now the subject of two judicial review applications filed in the Federal Court by the Mikisew Cree and the Frog Lake First Nations, both located in northern Alberta near the massive oil sands development. The two pieces of legislation in question were passed in 2012 ��� Bill C-38, which changed the Fisheries Act, and Bill C-45, an omnibus budget bill that contained many provisions, including changes to the 130-year-old Navigable Waters Protection Act (read more about this on the Back Page). The recrafted act streamlined protection only for the country���s busiest waterways, a change First Nations say eliminates environmental protection for thousands of rivers, streams, and small lakes. Victoria lawyer Robert Janes, counsel for the bands, told an Ottawa press conference earlier this year the lake at Frog Lake would no longer be protected, nor would many of ���the vast number of navigable waterways��� in Mikisew traditional territory making them vulnerable to being dug up for oil sands development. Bill C-38, which also passed last year, revamps Canada���s environmental assessment law by, among other things, giving the federal cabinet more power over resource development. The Mikisew First Nation, in an application filed in Federal Court, is seeking a declaration that the Conservative government and several ministers had a duty to consult on development and introduction of bills that could adversely affect the band. The court challenges are perhaps an indication the surge in aboriginal law will continue. Lawyers point out the parameters of the duty to consult could be further defined and possibly become more robust in years to come. he question of whether the duty to consult includes Crown consultation with First Nations before passing legislation is unsettled, according to a 2010 ruling in the Supreme Court of Canada. In a ruling involving a resource dispute between Rio Tinto Alcan Inc. and the Carrier Sekani Tribal Council over a smelter in Kitimat, B.C., the court ventured briefly into broad territory by expressly stating it would ���leave for another day the question of whether government conduct includes legislative action.��� ���That question is out there and it���s an interesting one,��� observes Lawson Lundell���s Bergner, who was involved in the Rio Tinto-Carrier Sekani case. ���It���s a mug���s game trying to guess what the outcome will be. It���s early days on that one.��� Bergner also notes ���another great example��� of whether there is a Crown duty to consult will play out in in a legal challenge filed by the Hupacasath First Nation in B.C. against Canada���s free-trade pact with China. The band, which is supported by aboriginal chiefs in B.C. and Ontario, is seeking Federal Court judicial review of the Canada-China Foreign Investment Promotion and Protection Act, arguing extraction of resources by foreign interests could affect aboriginal rights. ���Is there a Crown duty to consult over international treaty making?��� asks Bergner. ���On the duty to consult, the Supreme Court said the lower courts would fill in the details as time goes on. Well, there are an awful lot of details to fill in.��� And that, among other things, is keeping the aboriginal law community busy. According to Isaac, a self-described ���onetrick pony��� who spent his early years of practice in the company of a then-meagre group of aboriginal law practitioners, it���s turned out to be a specialty worth having. Adds Freedman, a full-time aboriginal law practitioner who took his first course in the area because it fit his schedule when he was at Queen���s University law school: ���Twenty years ago when I started this I don���t think anyone had any clue of how this would morph the way it���s morphed. And as long as companies want to develop land with resources ��� and we know Canada has a lot of resources ��� I don���t see it slowing down.��� www.CANADIAN L a w ye r m a g . c o m April 2013 27

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