8
infringement, pending final resolution of the underlying claim. Accommodation is
achieved through consultation, as this Court recognized in R. v. Marshall, [1999]
3 S.C.R. 533, at para. 22: "... the process of accommodation of the treaty right
may best be resolved by consultation and negotiation".
61
In the final resolution, the "consent" of an Aboriginal nation on "very serious issues" remains a
critical factor.
3.
Rights are rarely absolute
In domestic and international law, few rights are absolute. The objective is to respect and uphold the
rights of all. Achieving this end may require careful balancing among different rights-holders to
resolve potential conflicts. As described below, eliminating such conflicts contributes to
reconciliation.
In Delgamuukw, the Supreme Court indicated: "The aboriginal rights recognized and affirmed by s.
35(1), including aboriginal title, are not absolute."
62
Save for specific exceptions, such as the right
not to be subjected to torture or genocide, human rights are relative to the rights of others. As
affirmed in international law, Indigenous peoples’ rights are human rights.
63
An essential component of the Truth and Reconciliation Commission’s Calls to Action is using the
UN Declaration as the “framework for reconciliation”.
64
The TRC describes “reconciliation” as
“coming to terms with events of the past in a manner that
overcomes conflict and establishes a
respectful and healthy relationship among people going forward.”
65
In regard to conflict, former Special Rapporteur Anaya has identified “natural resource extraction
and other major development projects in or near indigenous territories as one of the most significant
sources of abuse of the rights of indigenous peoples worldwide.”
66
In regard to Indigenous consent,
Anaya has concluded:
It is generally understood that indigenous peoples’ rights over lands and resources
in accordance with customary tenure are necessary to their survival. Accordingly,
indigenous consent is presumptively a requirement for those aspects of any
extractive project taking place within the officially recognized or customary land
use areas of indigenous peoples, or that otherwise affect resources that are
important to their survival.
67
Reconciliation is an essential process when addressing Indigenous peoples’ Aboriginal and Treaty
rights and related injustices. As the Supreme Court has emphasized, reconciliation is “a process
flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982.”
68
This means that such rights are subject to balancing that takes into account a wide range of
principles including respect for the rights of others. Indigenous rights may be subject to limitations
or lawful infringement, based on strict criteria that can be objectively determined.
69
9
The UN Declaration includes some of the most comprehensive balancing provisions in any
international human rights instrument. Article 46(3) stipulates that all of the provisions set forth in
this Declaration “shall be interpreted in accordance with the principles of justice, democracy,
respect for human rights, equality, non-discrimination, good governance and good faith." These are
core principles of both the Canadian and international legal systems. These are also the core
principles that have been denied Indigenous peoples throughout history.
4.
"Valid legislative objectives" or "public purposes" do not preclude Indigenous consent
In Delgamuukw v. British Columbia, the Supreme Court described the general economic
development in B.C. as "valid legislative objectives" that are "subject to accommodation of the
aboriginal peoples' interests ... in accordance with the honour and good faith of the Crown":
... the general economic development of the interior of British Columbia, through
agriculture, mining, forestry, and hydroelectric power, as well as the related
building of infrastructure ... are valid legislative objectives ... these legislative
objectives are subject to accommodation of the aboriginal peoples' interests. This
accommodation must always be in accordance with the honour and good faith of
the Crown.
70
More recently, in Tsilhqot’in Nation, the Supreme Court of Canada has elaborated on Crown duties
in the context of Indigenous title to lands and territories. Any intrusions must be consistent with the
Crown’s fiduciary duty to the Aboriginal group.
71
Incursions on Aboriginal title “cannot be justified
if they would substantially deprive future generations of the benefit of the land”.
72
It is not sufficient
that government projects be justified on the basis of a “compelling and substantial public interest”.
73
They must also be consistent with the Crown’s fiduciary duty to the Aboriginal group. Such
obligations are especially crucial when proposed projects contribute to climate change.
Some climate change impacts are predicted to be irreversible
74
and would significantly affect
present and future generations. In view of their inadequate responses,
75
federal and provincial
governments may find it exceedingly difficult to satisfy the “minimal impairment”
76
and other
criteria required of them as fiduciaries.
An increasingly urgent public purpose is addressing effectively climate change. In regard to this
crucial issue, the Office of the UN High Commissioner for Human Rights emphasized in 2015:
“indigenous peoples’ rights should be fully reflected in line with the United Nations Declaration on
the Rights of Indigenous Peoples and actions likely to impact their rights should not be taken
without their free, prior and informed consent.”
77
In 2014, 27 UN special rapporteurs and
independent experts declared in an Open Letter:
Respecting human rights in the formulation and implementation of climate policy
requires … that the State Parties meet their duties to provide access to information
and facilitate informed public participation in decision making, especially the
participation of those most affected by climate change … The principle of free,
prior and informed consent of indigenous peoples must be respected. Particular