THE ADVOCATE 373
VOL. 78 PART 3 MAY 2020
THE INADEQUACY OF THE
CONSULTATION AND
ACCOMMODATION MODEL IN
PIPELINE CASES
By Michael P. Doherty
Recent events have illuminated a problem already apparent to
many lawyers working in the field of Aboriginal law: our legal
and political systems are inadequate for resolving issues concerning
the land rights of Indigenous peoples in British
Columbia. Pipelines, in particular, seem to cast the failings of our current
systems into sharp relief and call into question whether the “consultation
and accommodation” model devised by the Supreme Court of Canada is
adequate in all cases, as the courts have presumed it to be.1 Why is this?
The answer is that pipelines are different from other forms of resource
development in some important respects and, it is argued here, need to be
treated differently by the courts. In particular, the near certainty that
pipelines trespass upon Aboriginal title lands, the permanence of that trespass
and the certainty that doing so is contrary to the constitutionally guaranteed
incidents of Aboriginal title demand a new approach—one that
does not make the courts complicit in constitutional violations. More
specifically, courts should be prepared to make a preliminary determination
of whether any proposed pipeline’s route is likely to intrude upon
Aboriginal title lands.
ABORIGINAL TITLE
Even lawyers and judges who have experience in Aboriginal law can go
astray when dealing with the topic of Aboriginal land rights. To begin, then,
it will be useful to provide a summary of the topic.
When the British Crown or one of its international counterparts acquired
sovereignty over some geographic area, the property rights of the residents
of that area were presumed to be unaffected. Therefore, when the British
Crown extended its empire throughout much of the world, including the
west coast of North America, those who owned property were presumed to