Navigating the Duty to Consult and Accommodate Treaty and Aboriginal Rights

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Navigating the Duty to Consult and Accommodate
Treaty and Aboriginal Rights
Roy Millen
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INTRODUCTION

• 1. Why consult with and accommodate First
  Nations?
• 2. What aboriginal and treaty rights are
  involved?
• 3. Who must consult and accommodate?
• 4. When is consultation and accommodation
  necessary?
• 5. How is consultation and accommodation to be
  conducted?

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• 1. Why consult with and accommodate First
  Nations?
• First Nations occupied North America before
  Europeans and others arrived.
• Crown asserted sovereignty.
• Crown is required to deal honourably with rights
  and claims of aboriginal peoples.
• The Crown has not completed treaties with all
  First Nations

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• 1. Why consult with and accommodate First
  Nations?(contd)
• Section 35 of the Constitution Act, 1892
• The existing aboriginal and treaty rights
  of the aboriginal peoples of Canada are hereby
  recognized and affirmed.
• Section 35 represents a promise of rights
  recognition.
• Need to reconcile aboriginal interests and Crown
  sovereignty, preferably through negotiation.
• Hence, the duty to consult and, if appropriate,
  accommodate (Haida, para. 20).

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• 1. Why consult with and accommodate First
  Nations?(contd)
• The source of the duty is the honour of the
  Crown.
• Where there are no proven rights, it is not a
  fiduciary duty
• there is no specified and defined (i.e. proven)
  aboriginal interest over which the Crown has
  discretionary control, such as to impose a
  fiduciary duty on the Crown to act in the First
  Nations best interest.

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• 2. What aboriginal and treaty rights are
  involved?
• Aboriginal right an activity which
  relates to a practice, custom or tradition
  integral to the distinctive culture of the
  aboriginal group at the time of contact with
  EuropeansR. v. Van der Peet
• E.g. Hunting, gathering, trapping, fishing,
  travel, traditional and spiritual activities.
• Aboriginal rights and title and treaty rights are
  communal rights.

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• 2. What aboriginal and treaty rights are
  involved?(contd)
• Aboriginal title the right to exclusive
  use and occupation of the land, including all of
  its resources above and below the surface, where
  the aboriginal group had exclusive occupancy at
  the time the Crown asserted sovereignty
  Delgamuukw v. B.C.
• The First Nation cannot alienate the lands to
  anyone other than the Crown.
• There is an inherent limit which precludes the
  First Nation from using or permitting the use of
  aboriginal title lands in a way which is
  incompatible with the existence of aboriginal
  title (e.g. paving a sacred site).

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• 2. What aboriginal and treaty rights are
  involved?(contd)
• Treaty Rights - Treaty No. 8
• Surrender of rights to land - the said Indians
  DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP
  to the Government of the Dominion of Canada, for
  Her Majesty the Queen and Her successors
  forever, all their rights, titles and privileges
  whatsoever, to the lands included within the
  following limits.

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• 2. What aboriginal and treaty rights are
  involved?(contd)
• Rights to hunt, trap, fish And Her Majesty the
  Queen HEREBY AGREES with the said Indians that
  they shall have right to pursue their usual
  vocations of hunting, trapping and fishing
  throughout the tract surrendered as heretofore
  described, subject to such regulations as may
  from time to time be made by the Government of
  the country, acting under the authority of Her
  Majesty, and saving and excepting such tracts as
  may be required or taken up from time to time for
  settlement, mining, lumbering, trading or other
  purposes.

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• 3. Who must consult and accommodate?
• The source of the duty is the Crowns
  assertion of sovereignty over land previously
  occupied by aboriginal peoples, hence the duty
  lies on the Crown.
• Project proponents and others seeking to make use
  of land must apply to the Crown.
• It must consider and address aboriginal interests
  in the land.

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• 3. Who must consult and accommodate?(contd)
• Third parties have no independent duty to
  consult and accommodate First Nations. BUT
• such duties may be imposed by the Crown by
  statute or policy
• pragmatically, it is in the interest of
  proponents to ensure that the Crowns duties are
  fulfilled
• proponent may be required to fund consultation
  and accommodation if it wishes to see its project
  move forward.

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• 4. When is consultation and accommodation
  necessary?
• (a) The Trigger
• When the Crown has knowledge, real or
  constructive, of the potential existence of
  aboriginal rights or title and contemplates
  conduct that might adversely affect it (Haida,
  para. 35).
• A credible though unproven claim is sufficient.
• Crown decision-maker must assess the evidence put
  forward by the First Nation and available to the
  Crown.

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• 4. When is consultation and accommodation
  necessary? (contd)
• Example Taku River Tlingit submitted land claim
  to the federal government in 1983.
• Accepted for negotiation in 1984, based on their
  traditional use and occupancy of the land.
• Entered BC Treaty Process in 1993.
• Working towards Agreement in Principle as of
  1999.
• ? Crown clearly had knowledge of their rights and
  title claims.

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• 4. When is consultation and accommodation
  necessary? (contd)
• Redferns mine proposal could adversely affect
  Taku River Tlingits asserted rights and title.
• Crown contemplated a decision (approval of the
  road and mine) which might affect those rights
  and title.
• ? Crown required to consult, and if indicated,
  accommodate Taku River Tlingit.

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• 4. When is consultation and accommodation
  necessary?
• (b) Timing
• At the earliest stages of decision-making by the
  Crown in an approval process which could possibly
  result in the infringement of claimed rights.
• Before the proponent invests time and money such
  as to gain legally enforceable rights against the
  Crown.
• Difficult to meaningfully consult and accommodate
  First Nations after initial scope of project has
  been determined (Squamish Nation v. B.C.).

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• 5. How is consultation and accommodation to be
  conducted?
• (a) Proportionality Strength of Claim Analysis
• Scope of duty is proportionate to the strength of
  the case supporting the right or title claimed.
• The seriousness of the potentially adverse effect
  on it.
• Preliminary assessment by the decision-maker on
  the basis of evidence (Husby).
• Same for treaty rights - consider scope.

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• Varies with the circumstances stronger claim
  more significant effects greater consultation.
• May require information to be gathered and
  assessed in ongoing consultations.

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• (b) Extent A Spectrum
• Minimum is meaningful consultation with intention
  of substantially addressing aboriginal concerns.
• notice to First Nation of potential decision with
  adverse effects
• disclosure of information
• discuss issues raised in response to notice
  talking together for mutual understanding
• good faith on both sides no sharp dealing by
  Crown (Homalco)

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• Higher level deep consultation, aimed at
  finding satisfactory solutions.
• opportunity to make submissions
• formal participation in decision-making process
• e.g. participation on project review committee
  Taku

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• make changes to proposed action based on
  information obtained through consultation
• written reasons showing how aboriginal concerns
  were considered, and their impact on the
  decision
• Crown required to balance aboriginal interests
  and other societal concerns.

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• (c) Process
• No specific process is mandated.
• Best if Crown works through regulation or policy
  rather than unstructured discretion (Adams).
• BC Provincial Policy on Consultation with First
  Nations
• NEB Memorandum on Consultation with Aboriginal
  Peoples
• BC Oil and Gas Commission Agreements with
  individual First Nations on consultation
  processes - Note Salteau / Apsassin case.

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• (d) First Nations Participation
• Must provide information and input if they wish
  to have their interests addressed.
• No veto over the consultation process or the
  ultimate accommodation measures determined by the
  Crown (e.g. Lax Kwaalams).
• Must not take unreasonable positions.
• Hard bargaining by all parties is permitted.

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• (e) Industrys Role
• Be aware of framework law, policies, agreements
  with First Nations, including treaty negotiations
  which may affect the project (e.g. land targeted
  by First Nation for treaty settlement).
• Learn about the First Nation
• its social and governance structure
• its cultural and economic priorities
• meet the people and listen to their concerns.

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• First Nations will likely require funding (from
  Crown or proponent) so that they can retain or
  acquire the necessary expertise to participate in
  the review of the project and identification of
  affected aboriginal interests.
• assist in identifying other sources of funding /
  income
• consider economic partnerships with First
  Nations joint ventures, supply agreements,
  training, employment, and impact benefit
  agreements.

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• Provide information on paper and through
  meetings (with First Nation members and elders,
  not just leaders) and site visits.
• Ensure First Nation has adequate time to review
  information and provide comments (Halfway River)
• Proponent and Crown must consider and address the
  potential impact on aboriginal interests, once
  identified.
• May require altering the specifications of the
  project, or taking concrete steps to mitigate
  impact of project.
• Commitment to future mitigation may be
  required(e.g. when the project finishes).

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• 5. How is consultation and accommodation to be
  conducted? (contd)
• Record the process each letter, meeting, field
  trip.
• Track each issue raised by the First Nation and
  summarize how it is addressed.
• ? Industry is an active participant in
  consultation, and should also monitor the Crowns
  conduct.
• Doing things properly from the outset will
  help save time and expense later.

Roy Millen