NHCN presentation– Consultation and Accommodation June 23rd, 2009 Aimée Craft – Public Interest Law Centre

 Introduction to Consultation  Understanding Consultation  First Nations and Consultation

 WHEN?  The Crown must consult with Aboriginal people when Crown decisions or legislation may impact upon Aboriginal and Treaty rights

 WHY?  Sources of the obligation ▪ S. 35(1) of the Constitution - The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. ▪ Honour of the Crown ▪ S. 91(24) – federal responsibility for Indians and Lands Reserved for Indians ▪ Treaty  Constitutional obligations  Reconciliation of Crown assertion of Sovereignty with original occupation

 WHO?  Crown obligation (rooted in the Honour of the Crown) ▪ Federal ▪ Provincial  3 rd parties (industry) are not responsible for Crown Consultations (this includes Crown Corporations)  Duty is to the First Nation, not individuals (rights communally held)

 HOW?  Must be meaningful (Notice is not enough)  No duty to agree  Accommodation may be required

 R. v. Sparrow, [1990] 1 SCR 1075  one of the factors in determining whether limits on the right were justified is “whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented”.  R. v. Badger confirms that the Sparrow justification doctrine applies to Treaty rights cases as well

 R. v. Gladstone, [1996] 2 SCR 723  Concept of accommodation of the Aboriginal right (including priority)  There is a need for “consultation and compensation”, and to consider “how the government has accommodated different Aboriginal rights in a particular fishery..., how important the fishery is to the economic and material well-being of the band in question, and the criteria taken into account by the government in, for example, allocating commercial licences amongst different users” (para 64)

 Delgamuukw v. British Columbia, [1997] 3 SCR 1010  confirms and expands on the duty to consult and suggests that the content of the duty varies with the circumstances ▪ from a minimum “duty to discuss important decisions” where the “breach is less serious or relatively minor”; ▪ through the “significantly deeper than mere consultation” that is required in “most cases”; ▪ to “full consent of [the] aboriginal nation” on very serious issues.

 Haida Nation v. Minister of Forests et al., [2004] 4 CNLR 56  Taku River Tlingit First Nation v. British Columbia, [2004] 3 SCR 550  consultation and accommodation in pre-proven (asserted) rights cases  clarifies the duty of consultation ▪ Duty arises when the Crown contemplates conduct which may adversely affect Treaty and Aboriginal rights ▪ The scope of the duty is directly proportional to the nature of the right at stake and the seriousness of the potential adverse effect

 Mikisew Cree Nation v. Canada, [2005] 3 SCR 388  Consultation obligation applies to Treaty cases  Procedural obligation to Consult  Consultation must take place in advance of interference  Lists the minimum requirements of consultation (“low end” of the consultation spectrum)  Accommodation does not mean agreement

 Duty rooted in the Honour of the Crown  Honour of the Crown governs the relationship

 Why consult?  Ensure protection of Aboriginal and Treaty rights  Mitigate impacts

 Industry does not have an obligation  Crown Corporations do not fulfill the role of the Crown  Good faith is required from both sides  First Nations cannot frustrate the process  Based in reconciliation

 The “the duty arises when the Crown has  knowledge,  real or constructive,  of the potential existence of the Aboriginal right or title and  contemplates conduct that might adversely affect it” (Haida para 35)

 Is there a Duty to Consult?  Does the Crown have knowledge (real or constructive) that there is a potential claim to Aboriginal rights or title?  Is the Crown contemplating an action that would adversely affect Treaty or Aboriginal rights?  What is the scope of the Duty to Consult?  How strong is the Aboriginal rights case?  How serious is the potential impact of the Crown conduct?

 Proportionate to:  the strength of the case and  the seriousness of the potential adverse effect

Existence (Is there a Duty to Consult?) Does the Crown have knowledge (real or constructive) that there is a potential claim to Aboriginal rights or title? Is the Crown contemplating an action that would adversely affect Treaty or Aboriginal rights? What is the scope of the Duty? How strong is the Aboriginal rights case? How serious is the potential impact of the Crown conduct?

 Consultation must be meaningful BUT  Agreement is not required  As emphasized in Haida Nation, consultation will not always lead to accommodation, and accommodation may or may not result in an agreement. (Mikisew Cree, para 66)

 Minimum standard  provide notice;  directly engage the FN;  provide information: ▪ that details the proposed decision or action; ▪ that identifies how the Crown proposes to address the interests of the FN; ▪ that identifies the scope of the Crown’s understanding of the potential adverse impact of the proposed decision or action on the FN's interests;  explicitly solicit the FN’s response to the notice and information;  listen carefully to the concerns of the FN;  attempt to minimize the adverse impacts on the rights of the FN; and  where an infringement of a right is identified, the consultation must proceed to the analysis of justification established by the Supreme Court of Canada in R. v. Sparrow.

 Accommodation is: ▪ an adjustment or adaptation to suit a special or different purpose ▪ a convenient arrangement; a settlement or compromise Canadian Dictionary  Aimed at : ▪ reconciling Crown assertions of Sovereignty with aboriginal interests ▪ ensuring that unjustified infringements of Aboriginal and Treaty rights do not take place

 Issues for consultation  Often related to natural resources development, wildlife management and infrastructure  Responsibilities  FN government and citizens  Federal vs. Provincial consultations

 Consultation models (Federal, Provincial, Territorial, First Nations, Nations, Tribal Councils, etc.)  The future of Consultation  Reconciliation and negotiations  Engaging the Crown  FN preparedness and participation

 Issues for consultation  Two approaches: ▪ Rights as issues for consultation ▪ Crown interference as issues for consultation

 Rights  Hunting, trapping, fishing and plant harvesting  Environmental and wildlife concerns  Lands  Social and cultural

 Crown activity / interference  Mining  Hydro  Commercial and Sport Hunting, Trapping and Fishing  Transportation

 The Consultation process (NICA)  Notice  Information  Consultation ▪ Identification of rights ▪ Identification of potential impacts  Accommodation

HELP  developing a streamlined and consistent approach to consultation  implementing a Consultation Protocol for the FN detailing: ▪ consultation requirements ▪ consultation procedures ▪ designating parties to consultation ▪ addressing funding ▪ providing for accommodation measures  defining a Consultation Area  continuing to object to activities which impact on Rights  prefacing all discussions with: ▪ the requirement to consult with FN for all activities in FN Traditional Territory HURT  entering into agreements with the Crown which do not adequately protect existing Aboriginal and Treaty Rights (protected by s.35)  making arrangement with resource extraction or use companies (including Crown Corporations) without recognition of FN rights  ignoring activities that impact on other Aboriginal and Treaty rights (i.e. hunting, trapping, fishing, gathering, etc.)  authorizing activities in the traditional territory which are not based on recognition of Rights (implicitly or explicitly)

 First Nations are entitled to consultation :  Triggered when Crown activities or authorizations (includes an approval, license, permit) may effect Aboriginal and Treaty rights  Companies cannot fulfill the obligation  The level of consultation required depends on the significance of the impact

 Proven and asserted rights.  Should take place early on in the decision making process (prior to decision or activity taking place)  The scope of the consultation will depend on the strength of the claim and the seriousness of the potential adverse effect on the rights at stake.  Conducted in good faith and the Crown must act honourably.  First Nations should not frustrate a reasonable and adequate process.

 As a result of consultation, accommodation of the First Nation's interest may be required, although the Crown will balance Aboriginal concerns with the potential impact on the right with other societal interests  Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary. (Haida para 45)  Consultation is a continuous and renewed obligation

Ekosani