A Primer on the Constitutional Duty to Consult

We at OKT LLP followed closely the events that involved the Elsipogtog First Nation in New Brunswick yesterday, and continue to monitor the situation as it develops. We saw many powerful images, from pictures of RCMP officers in camouflage appearing to be lying in the grass holding rifles, to women standing at the front line holding up their drums. As two Maliseet (Wolastoqiyik) lawyers currently living in Toronto but descendent from First Nations in New Brunswick, we felt a little helpless yesterday and very far away from home.

As lawyers practicing in the field of “Aboriginal Rights Law”, we are familiar with legal concepts such as the “duty to consult and accommodate”, which is owed by the Crown when decisions or actions affecting First Nations and their land are contemplated. Reading many of the media articles and public comments on the situation at Elsipogtog, we were struck by the lack of discussion on why the people of Elsipogtog have a right to be consulted on the issue of fracking in their territory.

We have prepared a “primer” on the legal duty to consult and accommodate (linked below) in the hopes that it may assist people in having a better understanding of why First Nations have the right to be consulted when their rights are potentially being affected. We do not purport to speak for the members of Elsipogtog, or for any other First Nation for that matter. As the law tells us, each situation is unique and consultation and accommodation requirements must be assessed on a case-by-case basis, and in this post we are only providing a general overview and background to one of the issues that is relevant to this case.

http://oktlaw.wpengine.com/drive/uploads/2016/10/gpPrimer.pdf

By Renée Pelletier and Gillian Paul