1. CESD 3216 – CESD and the Law January 25-26, 2010 Part 6
Introduction to Duty to Consult and Accommodate and Impact and Benefit Agreements Naiomi Metallic
CESD 3216 – CESD and the Law
January 25-26, 2010
Part 6
Barbara will cover Canada’s political system with you and go more into depth about how the Canadian government, and it’s branches operate, and our political system.

2. The Duty to Consult and Accommodate
What is it?
Constitutionally-based law that provides some protection to Aboriginal rights, Treaty rights, Title, Self-Government (proven or credibly asserted) from government-approved activities that can negatively impact those rights.

3. Haida Nation v. BC & Weyerhaeuser, 2004
Facts : Province issued tree farm licenses to Weyerhaeuser company over lands subject to Aboriginal title claim by Haida, without any consultation with Haida.
Ruling: Crown knew of the Haida’s claim to the territory and failed to consult with them. This was a breach of the duty to consult. Licenses issued by Crown were set aside.

4. Taku River First Nation v. BC, 2004
Facts: Province approves mining project on lands subject to comprehensive land claim negotiated between BC, Taku and Canada. Project was subject to environmental assessment process that was specially tailored to involve Taku and take their concerns into account.
Ruling: Crown had duty to consult and accommodate Taku over project. Specially tailored environmental assessment process was sufficient to meet these obligations. No breach of duty.

5. Mikisew Cree First Nation v. Canada, 2005
Facts: Minister of Parks Canada approves winter road running through Mikisew reserve, without consulting them. After Mikisew protested, the road alignment was modified (but without consultation) to go around the boundaries of the reserve. Mikisew challenged second road alignment because it ran through family trap lines and would affect hunting.
Ruling: Changing the road alignment a second time, without Mikisew input, was in breach of Crown’s duty to consult and accommodate.
Soon we will have another case from the Supreme Court – Little Salmon Carmacks

6. What do we know about the duty to consult and accommodate so far?

7. 1. Protects asserted, but unproven, Aboriginal rights and interests from Crown or third-party activities, projects, policies, laws that can impact on those rights and interests.
First Nations do not have to prove existence of the right like in court. A “credible assertion” of an Aboriginal right is sufficient to trigger the Crown’s duty to consult. It is a low threshold.
Only the Crown (federal and provincial governments) has constitutional duty to consult and accommodate; not third-parties (i.e., project proponents / industry).
But Crown can delegate “procedural aspects” of duty to consult to third parties. Delegation has to be intentional, not because Crown is ignoring its duty to consult and accommodate.

8. 2. Crown’s duty arises when: (a) there is a project, policy, law, etc
2. Crown’s duty arises when: (a) there is a project, policy, law, etc., that that the Crown is in involved with, and (b) Crown knows, or should know, that the project, policy, law, etc., will impact on Aboriginal rights and interests.
Government project or government involvement in third party project, which can include issuing permit or licence, project approval through environmental assessment process, possibly financial support of project.
Giving Crown notice in the past, or putting the Crown on formal notice of the Aboriginal claim, or being in negotiation in the Crown are things that can trigger Crown’s duty.
The weakness or strength of the asserted right does not impact whether there is a duty, but will impact the extent of duty.

9. 3. What is required of the Crown to fulfill the duty depends on the circumstances:
A weak claim of Aboriginal rights and a project having only a small impact on those rights, might only require to Crown to give notice to the group about the project, listen to their concerns, and make some effort to address them.
A strong rights claim and project that could have significant impact on those rights, will require deep consultations, that may include ensuring Aboriginal group has access to all relevant information on the project, have opportunities to voice concerns and make recommendations on how those can be addressed, and be part of the decision–making process.

10. 3. What is required of the Crown to fulfill the duty depends on the circumstances (cont’d):
A special consultation process just for the Aboriginal group is not necessary, if the existing process is sufficiently tailored to ensure the group is actively in the decision-making process.
But inviting the group to participate in a general public consultation is not good enough.

11. 4. Even for strong claims, the process will involve give and take
4. Even for strong claims, the process will involve give and take. There is no duty to agree, and Aboriginal groups do not have a veto.
But Crown is required to seriously consider the concerns of the Aboriginal group and take steps to address these.
“Consultation that excludes from the outset any form of accommodation would be meaningless. The contemplated process is not simply one of giving the [Aboriginal group] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along.” Mikisew
Good faith is required on both sides. Crown cannot engage in sharp dealing, and Aboriginal group must engage in the process by making their concerns known, responding to the government’s attempt to meet their concerns and suggestions, and try to reach some mutually satisfactory solution.

12. How can economic opportunities arise from the duty to consult and accommodate?
Key is accommodation
In Mikisew, the Court said that consultation that excludes any form of accommodation would be meaningless.
First Nation must have be allowed to have a say in accommodation. Unilateral accommodation, like that in Mikisew, is “the antithesis of reconciliation and mutual respect”.
But no duty to agree.

13. What is Accommodation?
Alter project design to minimize impact on right
Economic participation in project – revenue sharing or employment / training agreements
Land transfers for lost land or resources
Financial Compensation for lost land or resources
Combinations of the above
Musqueam, Hall J., “In relatively undeveloped areas of the province, I should think accommodation might take a multiplicity of forms such as sharing of mineral or timber resources. One could also envisage employment agreements or land transfers or the like.
Factors that can influence what accommodation is chosen:
Community needs / desire / values
Type of project / activity
If land, availability of others lands – INAC’s willingness to make into reserve land

14. How to spot a C&A opportunity:
Natural resource project within your territory
Logging
Aquaculture
Farming
Mining & oil exploration
Alternative energy projects (windmills, turbines)
Highways, pipelines, roads
Buildings on title or sacred lands
On Crown land, reserve land, or sometimes even private lands
Private lands – Courts have said that there can be Aboriginal and Treaty rights on private lands.
Depends on the right to be exercise and degree of use of lands; whether they are incompatible.

15. After you’ve spotted C&A opportunity:
Bring to attention of appropriate designate in your community
Consultation and Accommodation Office / Officer
Chief and Council
Regional / provincial Aboriginal organization, e.g., KMK, etc.
Letter writing
Legal analysis
Negotiation & Agreements
With Government
With Industry - Impact and Benefit Agreements (IBAs)
Litigation
Agreements with government
Agreements with project proponents – talk about more with IBAs

16. Impact and Benefit Agreements
Private business and industry have no legal duty to consult, by it makes a lot of sense for them to do so anyway:
…it is now becoming clear that while the obligation to consult resides with government, not private business, it will be in the best interest of industry to corporate leaders to get with the agenda.
Not strictly legally mandated; but practically mandated.

17. Why should private business and industry get involved in consultation and accommodation?
Government might require as part of permitting / licencing process (delegation of Crown’s duty)
It makes good business sense:
Avoids delays in project, possible legal battles, lawyers fees
Fosters positive relationships with First Nations community
Capitalize on First Nation labour force
Encourage First Nation investment (financial , resources, or land)

18. Economic opportunities that can be part of an IBA
Employment opportunities
Training and education opportunities
Scholarships
Capacity building
Community development (infrastructure, social programs, language programs, etc.)
Contract and business opportunities
Co-management, joint venture or partnership opportunities
Our goal in this session is not to go through each and every clause you’ll find in an IBA, but talk about some of the kinds of opportunities these can open, and also touch on the things First Nations should be carefully of, and strategic about, when getting into an IBA.
We should find examples for each, in order to discuss each more fully

19. Other benefits that can be part of an IBA
Environmental protection and mitigation measures
Health and wellness measures and monitoring
Process for gathering and respecting traditional knowledge
Ongoing research into First Nation’s culture, history, use and occupation, and socio-economic status
Cross-cultural awareness and sensitivity training for project employees
Not strictly economic benefits, but can create positive conditions that foster economic prosperity – spin offs.
Again, talk about and provide examples for each.

20. Things to watch out for when getting involved in an IBA
Pressure by proponent to sign so that project deadlines can be met
Not enough time to properly study environmental, health, economic, social and legal impacts of project
Technical team should be formed to study all possible impacts (lawyers, engineers, biologist, traditional users)
Traditional Knowledge and Use Study should be done before entering IBA
You can get more out of an IBA if take your time, don’t just sign, do properties studies, identify impacts, and community needs.
Use can use the Crown’s duty to leverage the project proponent to consult early

21. Things to watch out for when getting involved in an IBA (cont’d)
Before signing an IBA, there should a prior agreement to negotiate the IBA that includes:
Funding by proponent for hiring technical people and conducting studies of impacts of project
Reasonable timelines for conducting studies and negotiations

22. Things to watch out for when getting involved in an IBA (cont’d)
An IBA should be balanced:
Not just focused on economic opportunities, but consider environmental, health and social needs of community as well.
Some First Nations sign 3 agreements: Impact Benefits, Environmental and Socio-Economic Agreements

23. Things to watch out for when getting involved in an IBA (cont’d)
If the project is in phases, with the possibility of it having different impacts (environmental, social, health, economic) at different points:
IBA should foresee possibility for further negotiation if circumstances change
Generally, should include clause that agreement will be reviewed and reassessed after a period of time (e.g., 5 years)

24. Final points to remember when getting involved in an IBA
First Nation should not feel rushed or bullied into accepting first thing proponent offers – litigation and direct action, are ways to push back
There needs to a team with expertise to assess full impacts (environmental, social, economic, health, legal, etc.) of the project – cutting and pasting from another First Nation’s IBA on a different project is not a good idea
Partnering with environmental groups – share knowledge…

25. End Wela’lioq Naiomi Metallic Burchells LLP
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