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Re: Sparrow, Delgamuukw, Gitxsan, & Taku

Facts:

Sparrow, Delgamuukw, Gitxsan, & Taku

Ratio:

The Crown must implicate First Nations in the planning of development. The duty to consult and accommodate is not merely informing the First Nation of events or what is happening moving forward, but incorporating them into the process.

Analysis:

Kids on Hallowe'en:

SCC: What the Crown was doing was undermining the the inherent s. 35 rights of First Nations.

Hallowe'en: Kids have an inherent right on Hallowe'en to eat as much candy as they want. They should be able to eat it how they want. When they want. On their own accord. But there is always those parents who try to regulate the kids inherent right to candy. They say to the kids, hey, you can either eat some candy, the ones I choose to give you, and you can be happy with it, or, you can have no candy at all. The kid has no say in what candy they get and cannot participate in determining what candy is best suited for them.

This is what was happening to the First Nations inherent rights and contracts with 3rd party businesses. The Crown was making the decisions for First Nations 'in their best interests' and claimed to be fulfilling the duty to consult and accommodate by keeping the First Nation in-the-loop so to speak. The Crown took what First Nations had an inherent right to, made the decision for them, told them what was going on, but only gave them one option, and said you can take this now, or get nothing. SCC said this is unacceptable and the First Nation must be incorporated actively into the process and cannot be forced to act as a passive beneficiary (if any benefit actually resulted).


Discussion

  1. CGBSpender 2

    It is worth pointing out that the Halloween example is precisely disanalogous because our intuitions tell us that parents do have the right, or at least good reason, to regulate the candy intake of their children. The point of a treaty is that the relationship is not that of a parent to a child but a relationship of equals. The analogy infantilizes first nations and is therefore a much better expression of the problematic mindset than its solution.
    I realize there might have been some intentional irony on your part, in which case I apologize for spoiling the joke, but one can’t be too careful with these things.

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