Does a party have to prove aboriginal right or title before there is a duty to consult with the aboriginal peoples?
British Columbia, Canada
The following excerpt is from Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management), 2003 BCSC 1422 (CanLII):
In Taku River Tlingit First Nation v. Tulsequah Chief Mine Project 2002 BCCA 59, it was argued that aboriginal right or title had to be established before there was duty to consult with the aboriginal peoples. In rejecting the argument, Rowles J.A. held that while the onus of proving a prima facie infringement of an aboriginal right or title is on the group challenging the legislation (or in this case the decisions of the statutory decision makers), it did not follow that until there was court ruling the right did not exist. (¶ 183)
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