How often are we seeing Chiefs and Councillors taking industry and Governments to task for “a failure to Consult with us” as it relates to resource development in our territories. This is great but unfortunately the “us” is confined to them and not the community at large.
By way of background, we have seen many significant Court victories since 1980 with one of the most significant being the 1997 Delgamuukw decision. In that case, the Gitxsan fought for their legal right to the land and they won. The case also confirmed that Aboriginal land rights are held communally, which means that decisions regarding the land should be made communally. In effect, First Nations generally have a fiduciary duty to make sure the membership is fully engaged and provided with full information prior to making any decisions that may affect the way of life. The leading case on the Crown`s duty to consult is the Haida Nation v British Columbia (Minister of Forests),  3 S.C.R. 511. The decisión in that case was clear in that the Crown has a duty to consult Aboriginal groups prior to exploiting lands to which they may have claims.
The most recent significant event impacting on the duty to consult was Canada`s adoption of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) which stated that Indigenous People had the right to free, prior and informed consent with respect to Resource Development on their land. It went one step further and added the right to veto but that is yet to be implemented in the Canadian context.
So there we have it, the duty to consult exists in law but what does consultation truly mean as it currently relates to members in the community? A Chief from a community recently commented, “why do I have to consult with them? It’s the government’s obligation to consult, and they consult with me as a representative of the 600 people”. From another perspective and that of a Gitxsan community member , “If government or industry wanted to do any business on our territories, they should be doing the business in our feast halls. They have to remember they are visitors here. These agreements are happening because they know they need consent of the first peoples of these territories. What’s said in our feast hall is our law. According to Gitxsan tradition all chiefs and members would gather and have their voices heard. The meeting would go all night, and the chiefs would walk away with a mandate from the people to either negotiate or oppose the project”.
In general, it is the elected officals who consult for the community, I intentionally say “for the community” as opposed to “on behalf of the community” because there are few exceptions where the elected officals return to consult with the community members on a final outcome. Land claims is an exception because there has to be a community vote on the final outcome.
We must be more proactive in preparing for what lies ahead in resource development on traditional territories and unsurrendered land. An ideal start point would be for a community vision and statement on the development and protection of their land. This would include the control and issuance of hunting and fishing licenses, timber harvesting or resource development and the like. It would be like a declaration of title and rights over traditional territories. From that declaration it would be easy to develop a consultation protocol which would be approved by community members at a general meeting. Such a consultation protocol would outline the powers of elected officals to consult on behalf of community members and the limits of their power. After all, Aboriginal land rights are held communally, which means that decisions regarding the land should be made communally.