The Globe and Mail reports in its Thursday, July 27, edition that indigenous Canadian communities have unique rights under
Section 35 of the Constitution. A Globe editorial says these protections, covering pre-existing
rights and those acquired by treaty, are extensive -- but
some are also limited. That is the takeaway from a pair of Supreme Court rulings
released Wednesday. One considered the National Energy Board's
approval of an oil and gas exploration project, over the objections
of an Inuit community. The Court struck the project down. The
other case looked at the NEB's approval of Enbridge's Line 9
reversal. The court said that, even though an affected indigenous
community was opposed to the project, the NEB
had properly consulted and properly approved it.
At issue in both cases is the Crown's "duty to consult."
The court wrote, "The duty to consult is rooted in the need to
avoid the impairment of asserted or recognized rights." For a consultation
to pass constitutional muster, it cannot just be about collecting complaints and
suggestions, and then ignoring them. The indigenous community
must be fully informed of the project's details and consequences,
and given the opportunity to respond.
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