The Duty to Consult: New Relationships with Aboriginal Peoples


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UBC Theses and Dissertations

A fiduciary duty, where it exists, is called into existence to facilitate supervision of the high degree of discretionary control gradually assumed by the Crown over the lives of Indigenous peoples. For example, when a First Nation surrenders its interest in reserve land to the Crown, a fiduciary obligation takes hold to regulate the manner in which the Crown exercises its discretion in dealing with that land on behalf of the First Nation.

Aboriginal Rights

Equally, not all fiduciary relationships and not all fiduciary obligations are the same. Fiduciary duties imposed on the Crown do not exist at large but in relation to specific Indian interests per the Supreme Court of Canada decisions in Guerin , Wewaykum , etc. While core elements of these policies are relatively consistent, Canada has adapted its approach to comprehensive claims to respond to regional differences across the country e. Again, this is a political process of negotiations, resulting in settlement agreements between the Crown and the aggrieved First Nation.

Limitation periods are not applied to historic claims. The bureaucratic and political approval process is entirely at the discretion of Canada and negotiations can drag on for years. As a result, Parliament created the Specific Claims Tribunal in to address the backlog of claims, and to adjudicate final resolutions of claims languishing at negotiations. Staffed by superior court judges, the Tribunal has been very effective in resolving the backlog of claims, and overturning federal policy that has prevented final resolution of claims e.

Section 35 1 rights include not only substantive rights e. The Crown has an obligation to consult an Indigenous people prior to making a decision or taking an action that may adversely affect the asserted section 35 1 rights of those people, even where those rights have not be proven in court or recognized in a modern treaty per the Supreme Court of Canada decisions in Haida, Taku River , etc. This procedural obligation to consult also applies to Crown decisions or actions that may adversely affect existing treaty rights of Indigenous people per the Supreme Court of Canada decisions in Mikisew Cree , Little Salmon Carmacks , etc.

The level of consultation required is context specific, and depends on the strength of claim of the asserted section 35 1 rights and the degree of potential adverse effects on those rights by the proposed Crown decision or action. One by-product of the duty to consult over the past fifteen years or so is the rise of impact benefit agreements between proponents and Indigenous peoples.

While proponents do not owe a duty to consult themselves, they often have a considerable interest to ensure the Crown consultation obligation is meaningful in order for their project to succeed.

Rights of Indigenous Peoples in Canada

As a result, impact benefit agreements, regulatory participation agreements, relationship protocols and other arrangements have become more common between natural resource proponents and Indigenous peoples. The negotiation and drafting of such agreements has become another practice within Aboriginal law. Section 87 of the Indian Act protects the real and personal property of Indians situated on reserve from taxation. There is a whole subset of Aboriginal law devoted to assessing whether personal property of an intangible nature like income, revenue from investments, etc.

Another subset of Aboriginal law includes the administration of estates of Indians ordinarily resident on reserve, pursuant to the Indian Act. Complications arise when beneficiaries include non-status Indians and non-band members, and whether rents earned by an estate properly should go to the estate or to the band until the estate is resolved.

First Nation councils are small, local governments with multiple employees. First Nation owned organizations such as child and family services or health services also have employees. For over years the administration of Canadian justice has been anything but just towards Indigenous peoples.

Guide to Real Property Management: Aboriginal Context

The Canadian legal system participated in the colonizing and delegitimizing of Indigenous laws and governments, the forced displacement of Indigenous communities from their lands, and, as the Truth and Reconciliation Commission of Canada recently exposed, the physical, sexual, and cultural abuse of generations of Indigenous children.

Reconciliation is a Canadian project, not an Aboriginal one, and lawyers play a pivotal role in moving this project forward. Aboriginal Rights and Title Canadian common law recognizes that Indigenous people were here prior to the settlers who colonized North America from Europe starting in the sixteenth century. Treaty Rights There are also numerous historic and modern treaties signed between the Crown and various Indigenous peoples in Canada.

Language selection

Constitutional Law There are two principal provisions in the Constitution of Canada that affect almost every aspect of Aboriginal law. Indian Act The federal Indian Act is the primary legislative tool by which the federal government has colonized and regulated Indigenous peoples now known as First Nations in Canada. More recently, on February 8, , the government announced further specifics regarding its proposed environmental reforms; these will be the topic of a future Dentons bulletin.


  • Dwight Newman - Google Scholar Citations.
  • UBC Theses and Dissertations;
  • Nicholas Copernicus Minor Works.
  • Ambiguous Adventure.

The Crown was granted summary judgment in all three cases, which were based on causes of action such as breach of fiduciary duty or of the duty to consult. Each of these cases revolved around Crown conduct decades into the past Ermineskin and Buffalo relating to a federal oil export tax impacting First Nations royalties, and Michel , to flooding resulting from the construction of a hydro-electric dam in The refusals appear to significantly dim the prospects for similar historic wrong—based claims going forward.

Duty to consult with Aboriginal peoples in Ontario | avscofsipavo.ml

This structural change responds to a longstanding recommendation from the report of the Royal Commission on Aboriginal Peoples. Ktunaxa spiritual-rights case affirms core Haida principles.


  • Aboriginal Rights.
  • Lectures on Solid State Physics;
  • Helping English Language Learners Succeed.
  • UBC Press | The Duty to Consult - New Relationships with Aboriginal Peoples, By Dwight G. Newman.
  • Scanning Probe Microscopy: Analytical Methods.
  • Genesis, Part II: God and His Family (Hearts Aflame, Chapters 12-50).

As we previously reported in a bulletin , the Supreme Court of Canada in November decided Ktunaxa Nation v British Columbia Minister of Forests , 10 the third case in a trilogy of consultation decisions released in the others being Chippewas and Clyde River , summarized below. Our top-ten list for can be found here.

Introduction

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The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples
The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples
The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples
The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples
The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples
The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples
The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples
The Duty to Consult: New Relationships with Aboriginal Peoples The Duty to Consult: New Relationships with Aboriginal Peoples

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