Anishinaabe - Cree - Dakota - Nakota Nations

The Duty to Consult v Requesting Permission

July 5, 2019

Treaty 2 Territory – There is an often-heard phrase today regarding First Nations in Treaty 2 Territory and projects related to economic development on the lands of First Nations and other matters: “The Duty to Consult”.

These four (4) words are the source of great confusion because those who use it usually are unaware of where that phrase comes from, what it means, and when its use is appropriate.

First of all, the complete phrase must always be used. Why consult? If the conduct of Canada (the Crown) might affect a right and/or interest of the people within the Treaty 2 Territory, the parties – the Crown and the Nation – need to consult with a view to reaching an agreement as to how the intrusion on the right might be properly accommodated.

The proper process is for the intruder to approach the right-holder, or vice versa;

  • to acknowledge that an action or decision might have a negative impact on a right or interest.
  • to consult with the affected Nation about the proposal, to describe the possible impact, to make sure (and if possible, agree) that the Nation is fully aware of the possible impact and that the proponent understands how this might affect the rights and interests of First Nation people, and
  • to reach agreement as to the actions which might be taken to accommodate that right, e.g., to pay for damage, to take mitigating actions, to move the impact to a different location, to abandon the proper action, etc.

The reason for all this is that because damage should not be done to people or land and then later – too late – to discover that our Treaty does not allow for a one sided agreement; e.g., the Treaty agrees that because of settlement and immigration the forest which is un occupied lands belongs to the First Nations, but the forest has already been cut.

The proponent must approach the right-holder and ask, “What do I need to do to have your consent to use your lands/resources/etc?” The rights-holder might say “no”, and that is the end of the matter. The parties might agree on terms through a protocol which result in the rights-holder agreeing to allow the proposal to proceed through partnership or whole by FNiT2T.

When our First Nations are being approached for use of lands or a negative impact on its rights should not demand “consultation. Anywhere within the Treaty 2 territory, all First Nations who made treaty and is part of the FNiT2T must be involved and give consent prior to any agreement made to proceed.

The demand must be for permission. For consent. That is the beginning of the discussion.

Last modified: July 7, 2019

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