KI6 Teach-In, April 21, 2008

What is the Crown’s legal “duty to consult”?

Dr. M.A. (Peggy) Smith, R.P.F.

Faculty of Forestry & the Forest Environment

Lakehead University

The Legal Duty to Consult Aboriginal title: legal right based on historic occupation & land

use; “sui generis” (unique) Aboriginal & treaty rights recognized & affirmed in s. 35,

Constitution Act, 1982 Crown has fiduciary (trust) obligation to uphold rights; honour

of Crown involved Aboriginal priority use over others, subject to conservation Title must be proven in court; oral testimony allowed Rights may be infringed by Crown, but minimally & with

justification and compensation Justification requires “meaningful” consultation

The Duty to Consult

Consultation: more than minimum acceptable standard Carried out in “good faith” Intent: to substantially addressing concerns of Aboriginal

peoples whose lands are at issue Case-specific—each community has to negotiate with the

Crown

Supreme Court of Canada Decisions on Aboriginal & Treaty Rights

CASE DATE OUTCOME

Calder 1973 Recognition of Nisga’a “ownership” or “Aboriginal title”; led to land claims

Constitution Act, 1982, s. 35(1): “The existing aboriginal & treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. S. 35(2): "aboriginal peoples of Canada" includes Indian, Inuit and Métis peoplesSparrow 1990 s. 35 must be interpreted liberally; the

Sparrow test

CASE DATE OUTCOME

Delgamuukw 1997 Duty to consult; oral evidence given equal weight with historic written evidence in land claim cases, standards for proving rights based on historic use

Haida 2004 Crown (province & federal governments) has major duty to consult, not private companies

Mikisew 2005 Duty to consult applies to treaty areas, not just Aboriginal title areas (Treaty #8)

Sappier & Gray

2006 Mi’kmaq have right to harvest timber on Crown land for personal use

Supreme Court of Canada Decisions (cont’d)

Source: Anderson & Bone 2003: 6

Historic treaties and modern day land claims

The Sparrow Test

Is there an existing Aboriginal or treaty right? Has there been an infringement of the right? Can the infringement be justified?

Justification

Is there a valid legislative objective to regulation or development?

Does regulation/development honour special trust relationship (fiduciary duty) of the Crown to Aboriginal peoples, upholding the “honour of the Crown”?

Is infringement minimal? Were Aboriginal people affected by

regulation/development consulted prior to?

Justification (cont’d)

What is a valid legislative objective? “of compelling & substantial importance to the community as

a whole” (R. vs Gladstone, 1996) Development of agriculture, forestry, mining & hydroelectric

power General economic development of interior BC Protection of environment or endangered species Building of infrastructure & settlement of foreign populations

to support above aims

“Meaningful” Consultation

Minimal & justified infringement Proper notice Sufficient information Reasonable discussion Adequate consideration of alternatives Means to participate Respect for different values & knowledge systems In some cases, approval & consent of Aboriginal people

Jurisdiction: Pass-the-buck syndrome Constitution gives federal government

responsibility for “Indians & lands reserved for Indians”

Provincial government has authority for management & development of natural resources within prov boundaries

S. 35 protects Aboriginal & treaty rights Whose responsibility?

How does Ontario consult with Aboriginal Peoples?

Resource development split between Ministry of Natural Resources (forests/parks), Ministry of Northern Development & Mines (mining), Ministry of Energy (hydro)

No co-ordinated approach, especially in light of Mikisew ’05 New minister of Aboriginal Affairs, Michael Bryant Bilateral negotiations: Northern Table with Nishnawbe Aski

Nation, Anishinabek Nation, Chiefs of Ontario (gaming revenues)

Ontario’s Mining Act

MNDM: Ontario’s Mineral Development Strategy: “initiating discussions with the goal of developing improved consultation approaches that work for all of us – Aboriginal peoples, Ontario and the minerals industry”

Holder of a prospector’s licence may prospect for minerals and stake out a mining claim on any Crown lands, surveyed or unsurveyed—”free entry”

• Gives province control over sub-surface rights

• No mention of Aboriginal or treaty rights

• Consultation inadequate

Is OMNR fulfilling its legal duty to consult?

“Fundamental barriers exist, such as lack of agreement about the nature and scope of Aboriginal and Treaty Rights. Issues are complex and progress towards broad solutions requires participation of agencies and levels of government beyond the MNR.”

“MNR does not have the legislative mandate to interpret treaties or assess rights. The province of Ontario has historically taken the view that the treaties are to be read literally, while First Nations contend that the spirit & intent of the treaties are quite different from the written documents. This lack of shared premises has hampered negotiations in some instances.”

(from Ontario’s State of the Forest Report, 2001)

MNR is making attempts, but faces challenges No recognition of Aboriginal & treaty rights Passing buck to federal government Struggling to find a way to create shared understanding

of meaning of treaties with Aboriginal communities Relying on current rules for “consultation” which are no

more than “minimum acceptable standard” Not providing Aboriginal communities the means to

participate Not consulting on certain key decisions affecting

Aboriginal & treaty rights—allocation of timber resources and licenses

Ontario Ministry of Aboriginal AffairsCurrent Negotiations: NAN

Northern Table with Nishnawbe Aski Nation, 2007- Development of MOU between MNR & NAN to

implement Provincial Parks and Conservation Reserves Act

Development of notification protocol for MNR licences & permits for resource development activities

Discuss land use planning, including approaches for balancing traditional & non-traditional activities for NAN First Nations both in far north & southern parts of NAN

Current Negotiations: Treaty #3 Letter of Intent, Oct. 2008 To build a new

relationship One-time capacity

investment $100,000 Grand Council Treaty #3’s

Earth Law

Minister of Aboriginal Affairs Brad Duguid, student Rochelle Kelly and Grand Council Treaty 3 Ogichidaakwe Diane M. Kelly at Onigaming First Nation.

Current Negotiations: Anishinabek Nation

Anishinabek Table, Nov 2008 Good governance Effective institutions and negotiations Individual and family well-being Opportunities in economic development and

sustainability

First Nations in resource stewardship

A chance to transform the way we look after lands & resources

Creating room for Aboriginal ideas of “keeping the land” Aboriginal connection to the land, through hunting,

fishing, trapping & gathering & knowledge that comes with it is essential for long-term stewardship

Will help to ensure a fair share of economic benefits from resource development goes to Aboriginal communities

Examples of Co-Management

Newfoundland: Co-management with Innu Nation (Forestry in Nitassinan http://www.innu.ca/forest/forestindex.htm, Government of Newfoundland & Labrador http://www.gov.nl.ca/releases/2001/forest/0131n03.htm

Algonquins of Barriere Lake, Trilateral Agreement Cultural information factored into Allowable Cut

determination http://www.algonquinnation.ca/ancom/barriere.html#

James Bay Cree, La Paix des Braves Grand Council of the Crees http://www.gcc.ca/ and Province of Quebec Ministry of Forests http://www.mrnfp.gouv.qc.ca/english/press-release-detail.jsp?id=809

Nuu-chah-nulth Comprehensive Planning Board

ReferencesGuirguis-Awadalla, Cathy, Stephanie Allen and Merrell-Ann Phare. 2007.

Consulting with the Crown: A Guide for First Nations. Centre for Indigenous Environmental Resources, Winnipeg, MB. 43 pp. + appendices. http://www.cier.ca

McDonald, Michael J. 2003. Aboriginal Forestry in Canada pp. 230-256 in Anderson, R.B. and R.M. Bone, Natural Resources and Aboriginal People in Canada: Readings, Cases and Commentary. Captus Press, Concord, ON.

Full judgments of the Supreme Court of Canada can be found at http://scc.lexum.umontreal.ca/en/.