 Hello, this is Waylon Chow and this is part 4 of the Constitution of Canada on Indigenous Rights. In this video, we will provide you with a general appreciation and overview of how Indigenous Rights are recognized and protected by the Constitution of Canada. Remember in 1982, the Constitution of Canada was repatriated from the United Kingdom to Canada. As a part of that process, the Constitution Act 1982 provided us with the Canadian Charter of Rights and Freedoms, but also within the Constitution Act 1982. There is a recognition of the rights of what are referred to as aboriginal peoples of Canada. The more appropriate modern term for aboriginal is indigenous and that is the term that we will use in this video. In subsection 35.1 of the Constitution Act 1982, it explicitly recognizes and affirms the existing indigenous and treaty rights of the indigenous peoples of Canada. Indigenous peoples of Canada includes what are referred to as Indian, Inuit and Métis. Indian is more appropriately referred to today as First Nations. First Nations peoples are those who occupy the land south of the Arctic before the arrival of the Europeans. Indigenous peoples are those who occupy the Arctic and the Métis are people of mixed indigenous and French ancestry who develop distinct customs and cultures. So what are the rights protected by section 35? There are two types that are mentioned in subsection 35.1. Treaty rights and indigenous rights. Treaty rights are the rights contained in treaty documents entered into by indigenous peoples and the Crown. Indigenous peoples are made up of First Nations, Inuit and Métis. The Crown refers to the British King or Queen especially if it is before Confederation in 1867. The Crown also includes the Canadian Parliament and provincial and territorial legislatures. Indigenous rights is a broader category of rights which are collective rights held by indigenous peoples that reflect their original use and occupation of the land. These rights may vary and may include title to land, self-government, resource exploitation and culture and customs. The Supreme Court of Canada has said that section 35 imposes a duty to consult on the Crown. This came from the decision of the Court in the Haida Nation and the British Columbia Minister of Forest. In that decision, the Court said that the duty to consult is a part of the ongoing process of reconciliation between indigenous peoples and Canadian society. The Court said that the duty to consult requires the Crown to consult with indigenous peoples whenever it intends to act in a way that may adversely affect indigenous rights. That duty to consult may be also delegated by the Crown to business interests. An example could be a company seeking a logging permit may be directed by the provincial government to consult with the affected First Nations to discuss the impact of the project and to negotiate a plan to accommodate indigenous interests as a part of the process of obtaining that logging permit. What exactly does the duty to consult require in any particular situation? That's a very difficult question to answer, but what we do know is that it depends on two things. The strength of the indigenous rights claim involved and the seriousness of the harmful impacts. On the low end of the consultation scale were a weak claim and minor impacts are involved, providing notice to the affected indigenous groups with relevant information may be enough to satisfy the duty to consult. On the high end of the consultation scale where a strong claim and serious impacts are envisioned, then a deep consultation involving two-way dialogue and participation of the indigenous groups in the decision-making process may be needed as well, accommodations may be required. Accommodations are adjustments of modifications to a project in response to indigenous concerns, for example, if a certain geographic area is seen to be culturally sensitive by indigenous groups, an accommodation may be needed to have the project avoid those areas altogether. The Supreme Court of Canada has specifically said that the duty to consult does not give a right to veto to indigenous groups. The duty to consult is best seen as being aimed towards a reconciliation of the rights enjoyed by the people who traditionally occupy the land and the right of the crown to govern all Canadians. A good example of the duty to consult and the difficulties that arise from that duty is the Trans Mountain Pipeline project that was proposed by a company named Kinder Morgan. Kinder Morgan needed the approval of the approval and permission of the federal government in order to proceed with the project. The federal government delegated the duty to consult with indigenous groups to Kinder Morgan. After Kinder Morgan had finished its consultation process, the federal cabinet approved the Trans Mountain Project. However, certain indigenous groups challenged that approval in court. In the decision of Tisley Wetuth Nation and the Attorney General of Canada, the Federal Court of Appeal quashed the federal government's approval of the project on the basis that the duty to consult had not been satisfied. Specifically, the court said that the federal government had been closed minded and unwilling to engage in a meaningful two-way dialogue with indigenous groups. Due to that court decision, Kinder Morgan decided to stop the project to suspend construction. The federal government then decided to take on the project itself. It bought out the project from Kinder Morgan for $4.5 billion. The federal government then restarted the consultation process again. After finishing a more extensive consultation process, the federal cabinet again approved the project and that approval again was challenged in court. This time, the Federal Court of Appeal upheld the approval, saying that the duty to consult had been satisfied. The Trans Mountain Project at the very least tells us how difficult it is to ascertain exactly what is needed to satisfy the duty to consult.