Understanding the New Relationship

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Understanding theNew Relationship

• Prince George, BCSeptember 19-20, 2006
• Maria Morellato
• Blake, Cassels Graydon LLP
• Suite 2600, 595 Burrard Street
• P.O. Box 49314, Three Bentall Centre
• Vancouver, BC V7X 1L3

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The New Relationship ConferenceSeptember 19-20,
2006

• Introduction Where Weve Come From
• Leadership Accord unified initiative
• A major objective engage provincial and federal
  governments to obtain respect, recognition and
  protection of aboriginal title rights and
  interests
• Result New Relationship document which
  embodies a common vision

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The New Relationship ConferenceSeptember 19-20,
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• New Relationship A Common Vision
• new government to government relationship
• respect, recognition and accommodation of
  aboriginal title and rights
• reconciliation through development of a new
  relationship with Crown

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The New Relationship ConferenceSeptember 19-20,
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• Common Vision (cont.)
• development of new processes and institutions for
  shared decision making regarding
• lands and resources
• revenue and benefit sharing
• implementing inherent right of aboriginal
  communities to make decisions about land use

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The New Relationship ConferenceSeptember 19-20,
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• Common Vision (cont.)
• addressing economic disparity between First
  Nations and other British Columbians
• social justice and self sufficiency for First
  Nations
• long term economic stability

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The New Relationship ConferenceSeptember 19-20,
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• Challenges of New Relationship Initiative
• Disparity great advances in the law affirming
  aboriginal rights significant poverty and
  marginalization for most First Nations
  communities
• Tangible Change Now creating positive change
  with concrete benefits to First Nations
  communities
• Realizing Aboriginal title and rights effective
  consultation and accommodation necessary

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The New Relationship ConferenceSeptember 19-20,
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• Challenges of New Relationship (cont.)
• provides an opportunity to
• address the disparity between significant
  advances in the law and continued marginalization
  of First Nations
• Harmonize Crown policy, action and decision-
  making with new legal order

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles established by Supreme Court of
  Canada which guide the New Relationship
• s. 35 provides a measure of control over
  government conduct and a strong check in
  legislative power (Sparrow at p. 1110)
• any potential infringement must be justified
• substantial and compelling legislative objective
• consistency with Crowns fiduciary duty
• (Sparrow and Gladstone)

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles (cont.)
• Allocation of land and resources must reflect
  prior aboriginal right
• link between question of justification and
  allocation of priorities (Sparrow 1114-1115)
• Principle of Priority applies to allocation of
  resources
• food fish (Sparrow)
• commercial fish (Gladstone)
• land and its resources (Delgamuukw)

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles (cont.)
• In Sparrow the court reasons
• The constitutional entitlement embodied in
  section 35(1) requires the Crown to ensure that
  its regulations are in keeping with the
  allocation of priority. ..The objective isto
  guarantee that those plans treat aboriginal
  peoples in a way ensuring that their rights are
  taken seriously.
• (Sparrow at p. 1119)

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles (cont.)
• In Gladstone, the Court further reasoned
• Questions relevant to the determination of
  whether the government has granted priority to
  aboriginal rights holders are those enumerated in
  Sparrow relating to consultation and
  compensation, as well as questions such as
  whether the government has accommodated the
  exercise of the aboriginal right to participate
  in the fishery.
• (at para. 64)

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles (cont.)
• The Court further reasoned in Gladstone
• the doctrine of priority requires that the
  government demonstrate that in allocating the
  resource, it has taken account of the existence
  of aboriginal rights and allocated the resources
  in a manner respectful of the fact that those
  rights have priority over the exploitation of the
  fishery by other users. (at para. 62)

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The New Relationship ConferenceSeptember 19-20,
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• Doctrine of Priorities Applied to Land and
  Resources
• In Delgamuukw, the Court elaborates as follows
• What is required is that the government
  demonstrate both the process by which it
  allocated the resource and the actual allocation
  of the resource which results from that process
  reflect the prior interest' of the holders of
  aboriginal title in the land. By analogy with
  Gladstone, this might entail, for example, that
  governments accommodate the participation of
  aboriginal peoples in the development of the
  resources of British Columbia
• (at para. 167)

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles (cont/)
• In Delgamuukw, the court reasons that apart from
  the allocation of land or resources, Aboriginal
  people may also be involved in decisions taken
  with respect to their lands
• aboriginal title encompasses within it a right
  to choose to what ends a piece of land can be
  put This aspect of aboriginal title suggests
  that the fiduciary relationship between the Crown
  and aboriginal peoples may be satisfied by the
  involvement of aboriginal peoples in decisions
  taken with respect to their lands.
• (at para. 168)

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles (cont.)
• The Court in Delgamuukw provides the duty to
  accommodate might include
• conferring fee simples for agriculture, leases
  and licenses for forestry and mining
• reducing economic barriers to aboriginal uses of
  their lands (e.g., reduced licensing fees)
• providing compensation
• (at paras. 162-169)

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The New Relationship ConferenceSeptember 19-20,
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• Forms of Accommodation (cont.)
• minimizing any infringement of Aboriginal title
  rights
• exploring ways in which the proposed activity on
  Aboriginal land may be conducted such that it
  does not disrupt Aboriginal use and occupation of
  the lands in question, or such that it
  accommodates the preferred manner of exercising
  affected Aboriginal rights

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The New Relationship ConferenceSeptember 19-20,
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• Legal principles Haida Decision
• The Court confirms unproven aboriginal rights
  must be recognized and respected
• The potential rights embedded in these claims
  are protected by section 35 the honour of the
  Crown requires that these rights be determined,
  recognized and respected. This in turn requires
  the Crown, acting honourably, to participate in
  the process of negotiation. (para. 28)

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The New Relationship ConferenceSeptember 19-20,
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• Duty to Consult Honourable Negotiations
• Section 35 represents a promise of rights
  recognition, and It is always assumed that the
  Crown intends to fulfil its promises (Badger,
  supra, at para. 41). This promise is realized
  and sovereignty claims reconciled through the
  process of honourable negotiation. It is
  corollary of s. 35 that the Crown act honourably
  in defining the rights it guarantees and in
  reconciling them with other rights and interests.
  This, in turn, implies a duty to consult and, if
  appropriate, accommodate.
• 
  (Haida, para. 20)

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The New Relationship ConferenceSeptember 19-20,
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• Scope of Duty to Consult and Accommodate
• Scope of duty is proportionate to preliminary
  assessment of the strength of the case supporting
  existence of the right or title, and to the
  seriousness of the potentially adverse effect or
  the right or title claimed.
• (Haida,
  para. 39)

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The New Relationship ConferenceSeptember 19-20,
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• Context of Duty to Consult and Accommodate
• Accommodation must substantially address
  aboriginal concerns
• At all stages, good faith on both sides is
  required. The common thread on the Crowns part
  must be the intention of substantially
  addressing aboriginal concerns as they are
  raised through a meaningful process of
  consultation. Sharp dealing is not permitted.
  (Haida, para. 41)

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• Reconciliation Balancing of Interest
• The duty to consult and accommodate by its
  nature entails the balancing of aboriginal and
  other interests which lies close to the aim of
  reconciliation.
• (Haida, para. 14)

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The New Relationship ConferenceSeptember 19-20,
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• Legal Duty lies with the Crown not Industry
• The duty to consult and accommodateflows from
  the Crowns assumption of sovereignty over lands
  and resources formerly held by the Aboriginal
  group. The Crown alone remains legally
  responsible for the consequences of its actions
  and interactions of third parties, that affect
  Aboriginal interests. (Haida, para. 14)
• The Crown may, by statute, delegate specific
  procedural aspects of consultation to industry
  partners in those cases, the delegation must be
  appropriately performed. Ultimately, however,
  the duty to properly consult lies with the
  Crown. (Haida, para. 53)

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The New Relationship ConferenceSeptember 19-20,
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• Risks to Industry
• Project disruptions
• Failure to obtain financing
• Preventative measures
• Impact Benefit Agreements

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The New Relationship ConferenceSeptember 19-20,
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• Due Diligence of Third Parties
• Third Parties are not under a legal obligation to
  consult and accommodate unless the obligation is
  lawfully delegated and accepted Environmental
  Assessment Legislation
• Courts have the authority to set aside or suspend
  transactions or permit approvals (Haida, Mikisew)
• Not uncommon for industry proponents to consult
  and address First Nations concerns in order to
  minimize the risk of a transaction of government
  approval being set aside

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The New Relationship ConferenceSeptember 19-20,
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• Due Diligence
• Companies dealing with crown land or
  permit/licence approvals affecting Aboriginal
  rights should assess
• Whether the Crown has properly consulted the
  affected First Nation
• Whether the concerns of the First Nation has been
  addressed
• Whether there has been an attempt to balance
  competing interests
• Whether there has been an attempt to minimize the
  infringement
• Whether there has been any accommodation of the
  Aboriginal right in question

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The New Relationship ConferenceSeptember 19-20,
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• Impact Benefit Agreements
• Have included the following components
• revenue sharing (e.g., as a percentage of gross
  revenue)
• share holdings
• employment
• training and skills development
• community involvement
• scholarships and educational funding

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The New Relationship ConferenceSeptember 19-20,
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• Impact Benefit Agreements (cont.)
• joint decision-making
• joint venture or business alliance
• funding for the consultation and
  accommodation process itself
• First Nation involvement in monitoring the
  construction and operation of the project and
• agreement by the First Nation to support the
  projects development, construction, start-up,
  or operation.

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The New Relationship ConferenceSeptember 19-20,
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• What is required at minimum by the honour of the
  Crown (from Mikisew decision)
• The Crown must provide notice of the proposed
  infringement and engage directly with the First
  Nation in question (para. 34)
• The Crown has a duty to disclose (para. 34)
• The Crown is under an obligation to inform itself
  of the impact of a proposed project on the First
  Nation in question (para. 55)
• The Crown must communicate its findings to the
  affected First Nation (para. 55)

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The New Relationship ConferenceSeptember 19-20,
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• What is required at minimum by the honour of the
  Crown (from Mikisew decision) (cont.)
• The Crown must, in good faith, attempt to
  substantially address the concerns of the First
  Nation (paras. 55 and 64)
• The Crown cannot act unilaterally (para. 49)
• Administrative inconvenience does not excuse a
  lack of meaningful consultation (para. 50)
• The Crown must solicit and listen carefully to
  the expressed concerns and attempt to minimize
  the adverse impact on the Aboriginal interests
  (para. 64)

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The New Relationship ConferenceSeptember 19-20,
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• What is required at minimum by the honour of the
  Crown (from Mikisew decision) (cont.)
• The concerns of the First Nation must be
  seriously considered by the crown and whenever
  possible, demonstrably integrated into the
  proposed plan of action (para. 64)
• There is a reciprocal obligation on the part of
  the First Nation to make its concerns known, to
  respond to the crowns attempts to meet its
  concerns and suggestions, and to try to reach
  some mutually satisfactory solution

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The New Relationship ConferenceSeptember 19-20,
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• Overview
• Mikisew endorses the reasoning in Halfway River
  that the Crowns duty to consult imposes on it
  a positive obligation to reasonably ensure that
  aboriginal peoples are provided with all
  necessary information in a timely way so that
  they have an opportunity to express their
  interests and concerns, and to ensure that their
  representations are seriously considered and,
  wherever possible, demonstrably integrated into
  the proposed plan of action. (emphasis added)
• (Mikisew at para. 64)

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The New Relationship ConferenceSeptember 19-20,
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• Concrete Steps Towards Reconciliation
• Meaningful consultation and accommodation through
  negotiated agreements substantially addressing
  the concerns of First Nations
• Allocating land and resources in a manner that
  reflects aboriginal and treaty rights
• Strategic level planning

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The New Relationship ConferenceSeptember 19-20,
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• Concrete Steps Towards Reconciliation (cont.)
• Re-working the referral process
• Developing alternative dispute resolution
  processes
• Interim measures