The Duty to Consult


Keywords: Aboriginal Title, Section 35, Dalgamuukw, Calder, Haida, supreme court, consultation, good faith, common law, effectivity, colonization, land, Canada.

Canada’s duty to consult with Indigenous peoples in Canada was established through “Aboriginal Title” to land. Section 35 of the Constitution Act of 1982 outlines the “Rights of Aboriginal Peoples of Canada,” including consultation, and this is where cases such as Delgamuukw rely on in developing the jurisprudence of Aboriginal Title. Aboriginal Title was found to be “Sui Generis” or unique to the law because its foundations and characteristics are not from common law rules of real property. However, common law allows for “occupation as proof of possession” to be used as a legality for Aboriginal Title, as long as Indigenous groups could prove they were occupying that land prior to British Sovereignty. This led to the recognition of legal title to land, which also introduced the possibility to infringe upon that title. Haida Nation v. British Columbia established that the good faith consultation is significant because of the Crown’s relationship with Indigenous groups through the treaties, that Indigenous people were not conquered but are in a relationship, through treaty, with the Crown. Indigenous peoples and their ability to practice their sovereignty is not possible due to poor socioeconomic conditions spurred by colonization and colonial subjugation. However the Crown is still bound by it’s honour to consult with Indigenous nations if Aboriginal Title is to be infringed upon.

This research essay received academic credit in the course titled “Survey of Public and Private Law Principles” at Mount Royal University. This assignment provided me with a deeper understanding of how the rule of law views me as an Indigenous person in Canada who values First Nation Determination.

My nation, and the vast majority of First Nations, need to become more stable in order to exercise actual influence in the Canadian polity. In order to do so, you need to heal the people as it were. My award winning paper, “Indigenous Genocide by Shame” explores the wounds of genocide onto Indigenous peoples, and what (theoretically at least) can be done to redress this trauma.