Duty To Consult Presentation Vbt Aboriginal Opportunities Conference Ppt

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Presented April 13, 2012 at Vancouver Board of Trade - Aboriginal Opportunities Conference.

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  • The duty to consult is one “mechanism through which the Crown can ensure it is acting honourable vis-à-vis Aboriginal interests
  • Duty To Consult Presentation Vbt Aboriginal Opportunities Conference Ppt

    1. 1. CONSULTATION/ACCOMODATION – BEYOND THE BASICS Aboriginal Opportunities Forum 2012 Merle C. Alexander Co-Leader & Partner, Aboriginal Law Group April 13, 2012
    2. 2. FormatTHE BASICS – BACKGROUNDBEYOND THE BASICS - QUESTIONS THAT NEED ANSWERS:3. Does Canadian law support Prior Informed Consent for Aboriginal Peoples?4. Does Consent only mean “veto”?5. Do standard public consultation processes satisfy the duty?6. Will the “streamline” legislation prejudice the Crowns ability to fulfill the duty?7. Can the procedural/operational aspects of the duty be delegated to third parties?8. Can courts require third parties to negotiate with First Nations?
    3. 3. THE BASICS• “Whether the Aboriginal group has been consulted” is a factor of the justifiable infringement test – Sparrow - 1992• Duty to consult has a spectrum: mere consultation, deeper more than mere and consent – Delgamuukw - 1997• Source of the duty to consult Aboriginal Peoples is the honour of the crown – Haida - 2004
    4. 4. THE BASICS• The broad purpose of the duty to consult is process of fair dealing and reconciliation between the Crown and Aboriginal peoples – Haida – 2004• For asserted but unproven rights, the purpose of the duty to consult is to protect these rights from irreversible harm as the settlement negotiations proceed – Rio Tinto - 2010• For proven rights, the purpose of the duty to consult is to fill any procedural gaps in the treaty - Mikisew – 2005 & Little Salmon – 2010
    5. 5. THE BASICS• The duty to consult arises when • The Crown has real or constructive knowledge of the potential existence of the Aboriginal right or title; and • The Crown contemplates conduct that might adversely affect that Aboriginal right or title (Haida)• Consultation after the fact does not satisfy the duty, it must occur prior to the proposed activities (Ross River, Solid Gold)
    6. 6. FPIC Does Canadian law support Free Prior Informed Consent? YES• Prior – consultation must occur before adverse impacts to protect and preserve Aboriginal Title and Rights• Informed – minimal standards require communication of applicable and relevant details for informed understanding
    7. 7. …• Consent – origin in Delgamuukw• Haida stated where “asserted and unproven” consent would not be available• When Aboriginal title or right is “proven and established” by judicial affirmation or Government-to-Government agreement, consent may be a legal requirement
    8. 8. VetoDoes “consent” only mean veto? NO• Consent means “mutual consent” – only mutual consent is consistent with the purpose of reconciliation• Government to government agreements represent a form of mutual consent• Impact Benefit Agreements where the First Nation supports a project may reflect mutual consent
    9. 9. Standard Public Consultation Do standard public consultation processes satisfy the duty? NO• In Mikisew standard public notices and open houses which were given were not sufficient – entitled to a distinct consultation process• Court also said that a consultation process that does not contemplate accommodation is flawed• The Joint Review Panels do not have the legal authority to accommodate, they will not likely satisfy the duty to consult
    10. 10. Streamlining Consultation Will the proposed “streamline” legislation prejudice the Crowns ability to fulfill the duty to consult? YES, IF…• The legislation shortens time frames disallowing adequate consultation with Aboriginal Peoples• Failure to fulfill the duty to consult will be considered an unjustifiable infringement of Aboriginal Rights and the legislation may be written down NO, IF…• The legislation includes Aboriginal consultation as a distinct process and allows for accommodation of specific First Nations• No legislation is above the Canadian Constitution or the rule
    11. 11. Delegation of Consultation Can procedural/operational aspects of the duty be delegated to a third party? YES• While the ultimate legal responsibility for fulfillment of the duty to consult resides in the Crown, its operational aspects can be, and often are, delegated to those third parties directly involved in the day-to-day resource development projects (Solid Gold);• Furthermore, industry proponents may be liable for their failure to consult (Platinex, Taseko Mines Ltd)
    12. 12. Court Ordered Consultation Can courts require third parties to negotiate with First Nations? YES• In Platinex and Solid Gold, the court ordered the parties to negotiate with one another• Not clear who is supposed to pay for First Nations to participate in such negotiations
    13. 13. Gayasixa - Thank you!
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