National Chiefs Task Force on Consultation

1
National Chiefs Task Force on Consultation
Accommodation

• Assembly of First Nations

2
Role of AFN Supporting First Nations

• Communication of First Nations policy
  perspectives
• Promotion of greater awareness and respect of
  First Nations rights and interests
• Facilitating relationship building between the
  Crown and First Nations
• Advocating First Nations rights and interests

3
Origins of the Duties

• Inherent Rights rights pre-existing to
  colonization recognized in s.35 of the
  Constitution Act
• Treaties Aboriginal title rights identified
  in treaties give rise to duties to consult
  accommodate according to the given Treaty
• Modern treaties or self-government agreements
  also identify these duties
• Common Law recognition standard in court
  decisions, full enunciation of duties still
  evolving

4
Standards So Far

• Courts have set some standards
• Crowns fiduciary duty means First Nations
  interests have priority over other interests
• Duties to consult accommodate apply to resource
  use as well as legislative policy development
• Crown must discharge can not delegate duties
• Duties to consult accommodate are separate
• Consultation along a continuum from simple
  notification to full consent based on the level
  of infringement/impact and the nature of a First
  Nations interests
• Little direction yet on content of accommodation
  duty
• Objective is reconciliation of Crown sovereignty
  with pre-existing Aboriginal title rights

5
Critical factors in Consultation

• Both the federal and provincial Crowns have a
  duty to consult
• The Crown cannot delegate its fiduciary
  obligation to consult to a third party
• Consultation must genuinely attempt to address
  First Nations concerns about the impact of an
  action on their rights, and have no predetermined
  outcome
• Accommodation is the reconciliation of the
  sovereignty of the Crown with pre-existing rights
  of First Nations

6
Nature of Duties

• Duties apply to any Crown action that may
  infringe an Aboriginal right or interest
• Duty is triggered at the earliest instance, where
  there is potential or constructive knowledge of
  impact on First Nations rights or title, either
  established or asserted
• First Nations also have a duty to engage in
  consultation non-participation is interpreted
  as declaration of non-interest

7
Principle of First Nations Consent

• Principle reflected in First Nations law and
  policy and is supported by the UN Declaration on
  the Rights of Indigenous Peoples, which
  recognizes that the free, prior, and informed
  consent of First Nations is required
• for development activities on First Nations
  traditional lands
• in the development of legislative or
  administrative measures affecting First Nations
• The UN Declaration recognizes that the right to
  self-determination including the right to
  consent and to withhold consent is held by each
  First Nation
• Currently, under Canadian Common Law, consent is
  required in the instance of established rights
  and where the infringement is determined to be
  significant
• determination of infringement impacts must be
  made with First Nations cannot be done
  unilaterally

8
Resource Development

• 350 Billion in resource development in around
  First Nations territories over the next 10 years
• Title, rights interests will vary across the
  country depending on the First Nation involved
• Process for consultation will depend on
  traditions structures of First Nation involved
• Conflict results in delay, increased costs, lost
  opportunity costs deepened impoverishment of
  First Nations

9
Legislative Policy Development

• Crown must consult First Nations on policies or
  bills that may affect rights interests
• Legal duty exists in addition to consultation as
  a matter of good public policy
• Unilateral Crown approach which may infringe
  First Nations rights will be subject to
  judicial scrutiny carrying the risk of a Crown
  decision or activity being held to be void or
  unenforceable
• Such an approach is clearly counter-productive
  resulting in delay, high costs to all involved,
  ineffective policy development and ongoing
  implementation issues

10
First Nations Consultation Policies, Protocols
and Agreements

• A growing number of First Nations and PTOs have
  developed, or are in the process of developing,
  their own consultation protocols or policies
• These often require
• Early engagement by the Crown or developers
  respectful relationship building
• First Nations involvement in process design
• Recognition of inherent and treaty rights, right
  of self-determination
• Respect of First Nations right to consent where
  rights or interests may be negatively impacted
• First Nations participation in decision-making

11
First Nations Consultation Policies, Protocols
and Agreements

• First Nations with comprehensive self- government
  agreements have negotiated legally-binding
  consultation provisions with the Crown and these
  agreements cannot be amended without the consent
  of the First Nation concerned.
• Some self-governing First Nations also have
  negotiated separate consultation protocol
  agreements with other governments.
• Implementation remains a critical concern, and in
  a number of cases treaties, protocols or
  provisions are not upheld by representatives of
  the Crown

12
Emerging Issues

• The federal government has initiated a number of
  programs and legislative changes that may signal
  divergence from acceptable standards of
  consultation and accommodation.
• These are
• Major Projects Management Office
• Amendments to Navigable Waters Protections Act
• Canadian Environmental Assessment Act (CEAA).

13

• Major Projects Management Office
• Streamline approvals for major resource projects
  into two years. Shift consultation requirements
  to project proponents.
• Navigable Waters Protection Act Amendments
• Minister has complete discretion to list any
  lake, river, stream as a minor waterway. No
  Environmental assessment will be required for
  projects on minor rivers.
• No requirement for notice, consultation or
  accommodation of First Nations interests or
  impacts from projects.
• There will be infringements to FN water
  navigation rights.

14
Proposed Changes to CEAA

• No environmental assessments for any project on
  federal lands, where federally funded, or any
  federal infrastructure project worth less than
  10 million.
• Exempt any project from federal environmental
  assessment at the request of a provincial
  government.
• This could mean
• There will be a weakening of the duty to consult
  resulting from the exemption of EAs, as EA is a
  current tool recognized by the Courts as a
  consultation mechanism.
• First Nation rights will increasingly be
  adjudicated under the realm of administrative law
  (judicial review of government decisions), rather
  than the higher level of constitutional law.

15
National Chiefs Task Force (NCTF) on
Consultation and Accommodation

• Response to call for a unified and coordinated
  First Nations approach to myriad efforts by
  federal government regarding Consultation and
  Accommodation
• Intent to support First Nations governments in
  the development of protocols, processes and
  policies
• Working with regional representatives to develop
  First Nations minimum standards for Crown
  behaviour

16
National Chiefs Task Force (NCTF) activities to
date

• Two meetings of full Task Force January 28
  March 16, 2009 and two regional fora (East/West)
  took place March 2-3, 2009
• Represents the beginnings of the conversation
  key preparatory work to develop coordinated FN
  position
• Canada is pushing short timelines for input to
  policy approach AFN is attempting to secure
  additional resources to continue work and
  coordinate a unified FN response, as directed by
  Task Force

17
National Chiefs Task Force (NCTF) proposed next
steps

• AFN has developed proposal to INAC for support
  to
• Conduct in-depth analysis, including
• A review of jurisprudence and govt. responses
• A legal analysis of the Federal Interim
  Guidelines
• Synthesis of First Nation and indigenous
  approaches to consultation and accommodation
• Models and mechanisms for dispute resolution
• Using analysis and working with FN
  representation, develop the initial framework for
  a coordinated First Nation response, to contain
  minimum standards and requirements for Crown and
  industry behaviour
• Convene a National Policy Forum to review and
  discuss response
• Seek endorsement of coordinated position by
  Chiefs at the December 2009 Special Chiefs
  Assembly