ABORIGINAL CONSULTATION UPDATE Presented to Alberta Chamber of Resources Calgary, AB June 6, 2007 Stan Rutwind, QC Acting Director Constitutional Law and Aboriginal Law Alberta Justice, Edmonton June 1, 2007 The view of this paper are those of the Presenter only and are not necessarily the views of Alberta Justice

Mikisew Cree First Nation v. Canada, Copps, Thebacha Road Society et al.  Released November 24, 2005  Unanimous decision of Supreme Court of Canada The Facts  Canada approved a 118 km Winter Road in Wood Buffalo, which passed through Mikisew’s Reserve.  Mikisew objected to road approval.

TREATY 8 COMPETING INTERESTS  First Nations have a right to hunt, fish and trap for food. vs.  Canada and Alberta have a right to take up lands from time to time for settlement, mining lumbering, etc. (“Taking Up Clause”)

PRE-MIKISEW  Sparrow Approach –Infringement and justification  Halfway River Approach –Taking ups infringe  Haida and Taku –Asserted aboriginal rights can trigger duty of consultation –Not in a treaty area

MIKISEW APPROACH:  Consultation is the road to reconciliation. (50), (63)  There is a freestanding duty of consultation which flows from the honour of the Crown. It is independent of the duty of consultation which is a component of the Sparrow justification. (33) [R. v. Sparrow (1990), the Supreme Court of Canada held that if the Crown infringes treaty rights it is open to the Crown to justify that infringement. One component of that justification is consultation].

 The duty of consultation flowing from the honour of the Crown is a procedural treaty right and there is no link to fiduciary duties. (51), (57)  The Crown has a treaty right to take up lands (31) and the taking up does not infringe a treaty right (32) (yet see paragraph 48). The Crown has an obligation to inform itself of the impact the project will have on treaty rights and communicate that to First Nations.

 “Other purposes” in the taking up clause of the treaty should be interpreted broadly. The creation or a road clearly falls into the category of “other purposes.” (24), (60)  The trigger threshold for the duty of consultation is slight – is there the potential for adverse impacts on treaty rights? (64)  The content of the duty of consultation is variable and is at the low end of the scale for surrendered lands subject to the taking up limitations and where, as here, the taking up is relatively minor – the creation of a road. (64)

 There must be notice to the First Nation, engagement with them including information about the project, the Crown’s knowledge of the impact on those interests and the Crown’s view of potential adverse impacts on those interests. The Crown must solicit and listen carefully to First Nations concerns and attempt to minimize impact on treaty rights. (64)

 The First Nation must carry out their end of the consultation, make their interests known, respond to the Crown’s attempt to meet their concerns and suggestions and try to reach some mutually satisfactory solution. (65)  There is no First Nation veto. (66)  The treaty right (e.g. hunting) is linked to hunting in that First Nation’s traditional territory. (47)  If there is no more meaningful right to hunt in traditional territories there would be a potential action for treaty infringement and a demand for Sparrow justification. (48)

Private Lands: Hupacasath First Nation v. British Columbia, [2005] BCSC 1712  Application for Judicial Review of decisions granting requests by Weyerhaeuser to remove privately owned land from TFL44 and to determine new allowable cut.  Crown has duty to consult on private land where Crown’s actions might adversely affect Aboriginal rights and title.  Content of duty is at low level.

Paul First Nation v. Parkland (County), 2006 ABCA 128  Paul Band argued Crown required to consult before Subdivision and Development Appeal Board issued permit.  There is no duty of consultation on the Crown on landowners regarding privately held lands.  Hupacasath distinguished as it involved an operative transfer of lands into a publicly funded program followed by an attempt to remove lands out of that program.

Standard of Review Haida Nation v. British Columbia (Minister), [2004] 3 S.C.R. 511, 2004 SCC 73  Process likely subject to standard of reasonableness  Misconception of seriousness of claim or impact of infringement is likely subject to standard of correctness Delegation Haida Nation, supra  Duty of consultation on the Crown  It may delegate procedural aspects of the duty

Early Consultation R. v. Douglas et al., [2007] BCCA 265  Sparrow justification case  Issue of adequacy of consultation  Consultation is a two way street  Also, where appropriate consultation is held on a strategy, there is no need to consult on subsequent actions where they are consistent with the overall strategy  Also see Haida Nation, para

Injunctions Platinex v. Kitchenuhmaykoosib Inninuwug First Nation, [2006] O.J. No (Ont. S.C.J.). (“Platinex 1”)  Released July 28, 2006  G.P. Smith J. granted an "interim, interim injunction" prohibiting Platinex from proceeding with exploratory drilling  Two conditions to the grant of injunction: –that FN release to Platinex any property removed by it from the drilling camp, and –that FN set up a consultation committee to meet with representatives of Platinex and the Provincial Crown.

Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation 2007 CarswellOnt 2995 (“Platinex 2”)  Released on May 1, 2007  Application by FN, a signatory to Treaty No. 9, for an injunction to prohibit a mining company from carrying out test drilling on provincial Crown lands  July 2000, FN filed a treaty land entitlement claim  February 2001, FN declared a moratorium on further development in its asserted traditional territory pending resolution of the TLE Claim  In 2005 and 2006, Platinex planned to drill some 24 – 80 exploratory holes

The decision (Platinex 2) The mining claims and leases granted to Platinex, and Platinex’s interest in drilling gives rise to a potential adverse impact to FN All aboriginal title and interest in the land was surrendered when Treaty 9 was signed Consultation had taken place over a period of nine months and was beneficial in identifying FN’s fears and concerns Balance of convenience favour Platinex but Platinex should not be given a carte blanche to proceed Development should proceed slowly with Ontario, Platinex and FN continuing to be engaged in consultation Court will supervise the consultation process

QUESTIONS  STAN RUTWIND (780)