Towards Indigenous Consent within Consultation in Resource Development: An Examination of Legal Standards for Consent on Aboriginal Title Lands

Abstract

The Supreme Court of Canada has continuously held that the underlying purpose of section 35(1) of the Constitution Act, 1982, is the reconciliation of Crown sovereignty with pre-existing Indigenous societies. This judicial testament has paved the way for continual Indigenous demands for consent in resource development especially where Aboriginal lands are impacted. The need to seek and obtain Indigenous consent prior to commencement of major developments on their territorial lands, therefore, flow from the Crown’s role as a fiduciary to Indigenous peoples and Canada’s reconciliation objective as guaranteed under the constitution. The thesis examines the current domestic requirement of consent when dealing with Aboriginal title in resource development. It explores ways of obtaining Indigenous consent from an Indigenous perspective. It seeks to contribute to the on-going discussion regarding the importance of Indigenous consent in resource development in Canada. It argues that although, highly useful, consultation is apparently insufficient in fulfilling the ultimate goal of reconciliation as held by the Supreme Court of Canada. Therefore, Indigenous consent to major projects on their lands appears to be the next reasonable step in the advancement of the Crown’s reconciliation goal. An examination of Aboriginal title as it engages resource development is undertaken. It also discusses the current regime of consultation with indigenous peoples through a critique of the jurisprudence on the legal duty to consult. Further, Indigenous decision-making processes using the Gitxsan Nation as a point of reference will be examined with a view to charting a model for obtaining consent in resource development. Finally, this thesis concludes by making recommendations to existing consultation frameworks and policies on the legal and procedural standards for obtaining consent from Indigenous people in a manner that is consistent with their existing governance structures. This thesis is timely and relevant as it proposes to enhance stability in Canada’s natural resource sector by advocating for the use of a model legal standard for consent rather than consultation when dealing on Aboriginal title lands. It also offers practical contributions to how consent can be obtained from Aboriginal title holders in a manner that takes into consideration a process proffered by Indigenous communities.