Consultation & Sustainability2Presentation Transcript
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 KI6 Teach-In, April 21, 2008
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 peoples Sparrow 1990 s. 35 must be interpreted liberally; the Sparrow test
Supreme Court of Canada Decisions (cont’d) Source: Anderson & Bone 2003: 6 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
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?
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 ?
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
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
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
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 Affairs Current 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
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
Guirguis-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/.