Community Coalition Against Mining Uranium (CCAMU)
Inquiry on the Impacts of the Uranium Cycle
Duty to Consult and Accomodate
Submitted by Bill Curry
This info (rec'd from Quaker Aboriginal Affairs Committee) is relevant for
uranium mining (and other) areas affecting Aboriginal Peoples.|
From the UN Declaration on the Rights of Indigenous Peoples:
1. Indigenous peoples have the right to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use,
develop and control the lands, territories and resources that they possess
by reason of traditional ownership or other traditional occupation or use,
as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to
these lands, territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.
States shall establish and implement, in conjunction with
indigenous peoples concerned, a fair, independent, impartial, open and
transparent process, giving due recognition to indigenous peoplesí laws,
traditions, customs and land tenure systems, to recognize and adjudicate the
rights of indigenous peoples pertaining to their lands, territories and
resources, including those which were traditionally owned or otherwise
occupied or used. Indigenous peoples shall have the right to participate in
1. Indigenous peoples have the right to determine and
develop priorities and strategies for the development or use of their lands
or territories and other resources.
2. States shall consult and cooperate in good faith with
the indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to the
approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization or
exploitation of their mineral, water or other resources.
3. States shall provide effective mechanisms for just
and fair redress for any such activities, and appropriate measures shall be
taken to mitigate adverse environmental, economic, social, cultural or
and here are some legal references from Cdn case law :
Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R.
511,at para. 24:
The Court's seminal decision in Delgamuukw, supra, at para. 168, in the
context of a claim for title to land and resources, confirmed and expanded
on the duty to consult, suggesting the content of the duty varied with the
circumstances: from a minimum "duty to discuss important decisions" where
the "breach is less serious or relatively minor"; through the "significantly
deeper than mere consultation" that is required in "most cases"; to "full
consent of [the] aboriginal nation ... " on very serious issues. These words
apply as much to unresolved claims as to intrusions on settled claims.
And at para. 32:
The jurisprudence of this Court supports the view that the duty to consult
and accommodate is part of a process of fair dealing and reconciliation that
begins with the assertion of sovereignty and continues beyond formal claims
resolution. Reconciliation is not a final legal remedy in the usual sense.
Rather, it is a process flowing from rights guaranteed by s. 35(1) of the
Constitution Act, 1982. This process of reconciliation flows from the
Crown's duty of honourable dealing toward Aboriginal peoples, which arises
in turn from the Crown's assertion of sovereignty over an Aboriginal people
and de facto control of land and resources that were formerly in the control
of that people. As stated in Mitchell v. M.N.R.,  1 S.C.R. 911, 2001
SCC 33, at para. 9, "[w]ith this assertion [sovereignty] arose an obligation
to treat aboriginal peoples fairly and honourably, and to protect them from
exploitation ... " (emphasis added).
Delgamuukw v. British Columbia,  3 S.C.R. 1010, para. 168:
The nature and scope of the duty of consultation will vary with the
circumstances. In occasional cases, when the breach is less serious or
relatively minor, it will be no more than a duty to discuss important
decisions that will be taken with respect to lands held pursuant to
aboriginal title. Of course, even in these rare cases when the minimum
acceptable standard is consultation, this consultation must be in good
faith, and with the intention of substantially addressing the concerns of
the aboriginal peoples whose lands are at issue. In most cases, it will be
significantly deeper than mere consultation. Some cases may even require the
full consent of an aboriginal nation, particularly when provinces enact
hunting and fishing regulations in relation to aboriginal lands.