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Mca Presentation April 27, 2009


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Duty to Consult and Accommodate

Duty to Consult and Accommodate

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  • 1. Consultation and Accommodation Merle Alexander Kitasoo Xai’xais First Nation, Tsimshian Nation Chair of the Aboriginal Practice Group – Boughton Law
  • 2. Outline
    • Opening Comments
    • Aboriginal Rights Generally
    • Aboriginal Title
    • What is Consultation? Overview
    • Industry Responses to the Duty
    • Municipal/Local Governments’ Duty to Consult
    • General Principles
    • Accommodation
    • Questions
  • 3. 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.
  • 4. 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
  • 5. 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
  • 6. What is Consultation? Overview
    • Haida 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
  • 7. 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
  • 8. 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
  • 9. 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
  • 10. 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
  • 11. 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
  • 12. 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
  • 13. 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
  • 14. 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.
  • 15. 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.
  • 16. 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
  • 17. 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.
  • 18. 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
  • 19. Questions Merle Alexander Chair Aboriginal Law Group Boughton Law M: +16047641567 W: +16046474145 [email_address]