Download - Overview Consultation and Accommodation
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 ScopeProportionate 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