Overview Consultation and Accommodation

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

Outline of presentation

Introduction to ConsultationUnderstanding ConsultationFirst Nations and Consultation

Introduction to Consultation

Introduction to Consultation

WHEN? The Crown must consult with Aboriginal

people when Crown decisions or legislation may impact upon Aboriginal and Treaty rights

Introduction to Consultation

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

Introduction to Consultation

WHO? Crown obligation (rooted in the Honour

of the Crown)▪ Federal ▪ Provincial

3rd parties (industry) are not responsible for Crown Consultations (this includes Crown Corporations)

Duty is to the First Nation, not individuals (rights communally held)

Introduction to Consultation

HOW? Must be meaningful (Notice is not

enough) No duty to agree Accommodation may be required

Introduction to Consultation – cases

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

Introduction to Consultation - cases

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)

Introduction to Consultation - cases

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.

Introduction to Consultation - cases

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

Introduction to Consultation - cases

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

Understanding Consultation

Understanding Consultation– Source of the duty

Duty rooted in the Honour of the Crown

Honour of the Crown governs the relationship

Understanding Consultation

Why consult? Ensure protection of Aboriginal and

Treaty rights Mitigate impacts

Understanding Consultation – Crown obligation

Industry does not have an obligationCrown Corporations do not fulfill the

role of the CrownGood faith is required from both

sidesFirst Nations cannot frustrate the

processBased in reconciliation

Understanding Consultation – Duty and Scope

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)

Understanding Consultation – Duty and Scope

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?

Understanding Consultation – Duty and Scope

Proportionate to: the strength of the case and the seriousness of the potential adverse

effect

Understanding Consultation – Duty and Scope

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?

Understanding Consultation - Process of consultation

Consultation must be meaningfulBUTAgreement 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)

Understanding Consultation – Scope of the duty

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.

Understanding Consultation - Accommodation

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

Understanding Consultation

Issues for consultation Often related to natural resources

development, wildlife management and infrastructure

Responsibilities FN government and citizens Federal vs. Provincial consultations

Understanding Consultation

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

First Nations and Consultation

First Nations and Consultation – Consultation Areas

First Nations and Consultation

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

First Nations and Consultation

Rights Hunting, trapping, fishing and plant

harvesting Environmental and wildlife concerns Lands Social and cultural

First Nations and Consultation

Crown activity / interference Mining Hydro Commercial and Sport Hunting, Trapping

and Fishing Transportation

First Nations and Consultation

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

Accommodation

First Nations and Consultation

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)

Summary

Summary

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

Summary

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.

Summary

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