Why Consultation is Not the Answer

No Clarity Regarding when Crown must do more than Consult

The Court has left open the circumstances under which the Crown's duty
may be more than just one of consultation and accommodation. Presumably, this
would include circumstances where the Crown has a fiduciary obligation regarding a
right that has been recognized and over which the Crown has discretionary control.88
The rule set out in Delgamuukw which requires the First Nation's consent in certain
cases also still stands.89 Nevertheless, it may continue to be difficult to define the
exact situations when a fiduciary obligation arises or when the full consent of the
First Nation is required. In addition, the courts continue to have the challenge of
determining when the Crown can justifiably infringe an Aboriginal right without
breaching a fiduciary duty.

As Haida Nation, Taku River and Mikisew show, there are situations where
neither the consent of the Aboriginal peoples is required nor is there a fiduciary duty
owed to them. Does the honour of the Crown mean in these cases that as long as the

government has decided the infringement (the proposed land-use activity) is justified
and reasonable measures have been taken to consult and accommodate Aboriginal
concerns, the project can be approved? This would imply that projects which
substantially interfere with the ability of Aboriginal peoples to exercise their rights
can still be approved if the government can show that it had made some effort of
accommodation. Since the courts will grant some deference to government decision
makers, the government does not need to implement every feasible accommodation
measure.90

To summarize, a duty to consult does not necessarily lead to reconciliation.
There are many practical issues that need to be overcome in order to provide
effective notice and meaningful consultation, including adequate resources. Even
when the information can be provided and resources made available, consultation can
often be an adversarial preliminary step towards litigation rather than a genuine
attempt to find reconciliation. Moreover, adequate consultation does not guarantee
protection of Aboriginal rights or interests. The deference the courts give the Crown
may allow the Crown to fulfill its duty to consult and accommodate while infringing
Aboriginal or treaty rights.





21 Windsor Rev. Legal & Soc. Issues 33 (2006)
Honour of the Crown: The New Approach to Crown-Aboriginal Reconciliation [article]
Huyer, Timothy