Consultation and Accommodation

Merle AlexanderKitasoo Xai’xais First Nation, Tsimshian NationChair of the Aboriginal Practice Group – Boughton Law

Outline

1. Opening Comments2. Aboriginal Rights Generally3. Aboriginal Title4. What is Consultation? Overview5. Industry Responses to the Duty6. Municipal/Local Governments’ Duty

to Consult7. General Principles8. Accommodation9. Questions

Opening Comments

Consultation and accommodation principles at its infancy in the Aboriginal law context.

If C/A is satisfied, the applicable Government can “justifiably infringe” constitutionally affirmed rights.

Trumping the Canadian Constitution is a substantive challenge and achievement.

This area of law has and will evolve procedurally and substantially in coming years, particularly as the relationships among Aboriginal peoples, Governments, industry, and civil society evolve.

All Governments can be a progressive force in this dynamic change.

Parties that are regressive and attempt to maintain the status quo also do so at their peril.

Aboriginal Rights Generally

Constitutional Protection: Section 35 of the Constitution Act, 1982:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

R. v. Van der Peet, [1996] 2 S.C.R. 507: Aboriginal are defined as legal and enforceable

rights → doctrine of Aboriginal rights (Sparrow) Aboriginal rights exist on a spectrum according

to their degree of connection with the land

Aboriginal Title

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010:

C/L test for proving a claim of Aboriginal title Scope of consultation and accommodation Set out the spectrum of duty to consult: (1)

mere consultation; (2) more than mere consultation and (3) consent

Aboriginal rights and title are sui generis, inalienable except to the Crown and collective in nature

What is Consultation? OverviewHaida and Taku River Tlingit – 2004 - SCC The duty to consult and accommodate has

its origins in the honour of the Crown: “In all its dealings with Aboriginal peoples,

from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably”

Crown’s duty to consult and accommodate exists irrespective of whether Aboriginal rights and title have been proven

What is Consultation? Overview

Scope of duty to consult and accommodate depends upon: (1) Strength of case supporting existence of Aboriginal right or title and (2) Scale of potentially adverse impact

Each case must be assessed on its own factual basis

There are no specific guidelines on what is appropriate consultation or accommodation

What is Consultation? Overview

Musqueam Indian Band v. British Columbia - 2005 BCCA 128:

Duty owed by the Crown was at the expansive end of the spectrum, warranting “deep consultation”

Competing claims to the lands or resources at stake by multiple First Nations does not necessarily counter the duty owed by the Crown

What is Consultation? Overview

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69:

Duty to consult and accommodate applies to context of historical treaty

Elaborates on the conduct expected of the Crown when the duty to consult is placed at the lower end of the spectrum

Reaffirms that unilateral Crown action is unacceptable

What is Consultation? Overview

Hupacasath First Nation v. British Columbia (Minister of Forests), 2005 BCSC 1712:

Crown’s duty to consult and accommodate may apply to privately held lands,

First Nations can possess a prima facie right to hunt, fish, gather food, harvest trees and visit sacred sites on private lands, subject to the rights of fee simple owners to prohibit their access

Illustrates established trend in court-order consultation, accommodation and mediation processes

What is Consultation? Overview

Platinex v. Kitchenumaykoosib Inninuwug First Nation et al., [2006] 4 C.N.L.R. 152:

All parties, industry proponent included, were ordered to participate in consultation negotiations

The court may consider the Crown’s provision of resources to the First Nation to engage in consultation as part of assessing the adequacy of consultation

What is Consultation? Overview

Little Salmon/Carmacks First Nation v. The Government of Yukon (Minister of Energy, Mines and Resources), 2008 YKCA SCC 13:

Crown obligation with respect to the duty to consult is an implied term of both historical and modern day treaties

Industry’s Response to Consultation While the duty to consult extends only to the

Crown and excludes third parties, the Crown may delegate procedural aspects of consultation.

In most contexts, industry proponents will have a vested interest in advancing consultation and accommodation efforts.

Many First Nations are engaging with industry directly to negotiate impact benefit agreements (IBA’s) or consultation agreements

Municipal Governments – Duty to Consult

Local governments have the powers to make decisions that may impact Aboriginal or treaty rights.

Municipalities are not crown entities – created by provincial statute, not constitutional authority.

While the SCC has concluded that third parties are not responsible for discharging the Crown’s duty to consult, it has not specifically commented on the obligations of local governments – question unsettled.

Municipal Governments’ Duty to Consult

Gardner v. Williams Lake – BCCA - 2006 BCCA suggests that the Crown’s duty to

consult may not extend to municipalities. Case did not involved any claimed Aboriginal

or treaty rights and cannot be treated as a definitive ruling on the duty to consult.

Case did not engage the honour of the Crown or the heightened responsibility that comes with the principle in cases engaging Aboriginal questions.

General Principles

Arises when a Crown actor has knowledge, real or constructive, of the potential existence of the aboriginal right or title and contemplates action that might adversely affect it.

This may lead to a duty to accommodate aboriginal interests.

Consultation/Accommodation is an open-ended concept and is dependent on the factual circumstances

General Principles

Responsiveness is a key requirement of both consultation and accommodation. Consultation varies with the

circumstances. Consultation must be fair, honourable

and meaningful. Consultation must include all information

as to how the aboriginal title and rights may be affected.

First Nations do not have a veto. No duty to agree in all circumstances.

Accommodation

Measures to accommodate aboriginal interests: Shared decision-making; employment, training and apprenticeship

opportunities; share of resource royalties; measures to develop community capacity: scholarship funds, etc; business and contracting opportunities; and impact benefit agreements

Questions

Merle AlexanderChair Aboriginal Law

GroupBoughton Law

M: +16047641567W: +16046474145

malexander@boughton.ca