The Law of Consultation and Accommodation

1
The Law of Consultation and Accommodation

• Prepared for
• The National Aboriginal Land Managers Association
• National Fall Assembly 2007
• Dakota Dunes Conference Center
• By
• Leah M. Bitternose LL.B. LL.M.(c)
• Email
• lmb931_at_mail.usask.ca

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The Legal Duty of Consultation

• Introduction
• We are the Land-The Land is Us
• The Legal Constitutional Duty of Consultation
  Accommodation
• The Doctrine of the Honour of the Crown
• Your Consultation Policy
• Conclusion

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Introduction

• Consultation Accommodation is a area of law
  that is currently developing and EVOLVING.
• In Short, it is a LEGAL DUTY imposed by the Court
  on Govt to Consult and Accommodate Aboriginal
  People if they CONTEMPLATE action that will
  affect our Rights.
• Much like other Canadian Court decisions on
  Aboriginal issues, the law of Consultation must
  be viewed with a CAREFUL eye.
• We must always keep in mind that Canada will
  almost always protect majoritan politics OVER
  competing Aboriginal Rights.

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We are the Land The Land is Us

• Aboriginal people ARE the land.
• We have a DISTINCT spiritual relationship with
  our Land/Territories that is inextricably linked
  to our SURVIVAL as Indian People.
• Our land is critical to the PRESERVATION of our
  KNOWLEDGE SYSTEMS, LAWS, LANGUAGE, CULTURE and is
  the CORE of our EXISTENCE.
• The relationship is intricate and based on
  WORLDVIEWS that all LIFE is inter-connected.
• WE KNOW THAT OUR ACTIONS WILL HAVE LONG TERM
  IMPACTS.

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We are the Land The Land is Us

• Aboriginal people have always had ways to develop
  SUSTAINABILITY of lands, waters resources for
  past, present and future generations.
• OUR Ceremonies, songs, dances, stories are
  EVIDENCE of the deep, abiding relationship.
• ABORIGINAL LAWS included and ensured
  environmental conservation, short and long term
  PERSERVATION of the land.
• ABORIGINAL TERRITORIES and societies are communal
  that relied on Individual and community knowledge
  to maintain the ecosystem the supports our
  collective survival.
• WE have practiced TRADITIONAL CONSULTATION
  through, potlatches, council fires, public
  forums, elders councils and community dialogue.

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Aboriginal Sovereignty

• We assert that our Sovereignty includes
  Aboriginal (original) Title, Rights, Jurisdiction
  and Law making authority.
• Self Determination is a Responsibility and
  Jurisdiction to PROTECT the ACCESS and USE of the
  land and resources for the benefit of our people.
• Still, in 2007, we find ourselves in a fierce
  struggle to protect our lands.
• Our struggle to protect our land is nothing more
  than the struggle to survive as Nations.

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We must Prove that we have Rights

• Canadian Laws were created to PREVENT Aboriginal
  People from asserting Rights over our Territories
  to make our Governance Systems illegal.
• Under Canadian Law, Indian people MUST go to
  court to PROVE our rights exist and the COURT
  then DECIDES the scope and content of our rights.
• The POLICY of DENYING ABORIGNAL TITLE largely
  continues as the CROWN continues to ISSUE
  INTRESTS in Aboriginal Lands and Resources.
• CANADA and the mainstream have become WEALTHY
  from the land resources harvested while the
  Original owners, live in utter poverty through
  DISPOSSESSION of our land.

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Our Rights

• The steady and increasing pressure on the land
  THREATENS its integrity.
• Our Laws need to recognized and incorporated to
  ensure the preservation of the land.
• CONSULTATION that is EFFECTIVE and MEANINGFUL can
  be a first step in the process
• Your Community can hold the Crown to the
  standards set by the courts.

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Indigenous Principles of Consultation

• CONSULTATION has become a body of law that FORCES
  government to RESPECT our rights as Aboriginal
  people.
• Consultation can/will be used by Aboriginal
  Govts to require RECOGNITION of our rights to
  Self Determination through CHOICE and
  PARTICIPATION in decision making processes.
• Consultation should ensure the ACTIVE INVOLVEMENT
  of Aboriginal people and the recognition and
  Protection of Intellectual, Cultural and Property
  rights.
• Consultation can recognize the principle of prior
  ownership and our CONTINUED RIGHTS TO THE LAND.

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Consultation Double Edged

• Consultation is a legal mechanism that the COURTS
  use to ASSESS whether Canadian Govts have taken
  Aboriginal Title and Rights seriously.
• BUT, consultation has also been USED by Govts to
  justify infringements of Rights and Title.
• Aboriginal people and Canadian Govts have very
  DIFFERENT VIEWS of what Consultation is, its
  purpose, how it should be carried out etc.
• A FUNDAMENTAL DIFFERENCE is Aboriginal Govts
  view CONSENT an obvious requirement in respecting
  Sovereignty and Jurisdiction.

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Informed Consent

• HOWEVER, Canadian Govts have created
  consultation processes that FALL SHORT OF
  Aboriginal CONSENT the Courts have held that
  Consent and even Agreement is not necessary.
• Contrary to INTERNATIONAL STANDARDS that call for
  INFORMED CONSENT (United Nations Rio
  Declaration Agenda 21, the Biodiversity
  Convention, The International Labour Convention,
  The Permanent Forum on Indigenous Rights U.N.
  Draft Declaration on Indigenous Peoples, The
  Assembly of the Organization of American States
  Draft Declaration on Indigenous Rights)

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Is this Aboriginal Consultation?

• Govt and Developers come to our communities and
  they tell us We are going to build a House.
  They then tell us precisely WHERE the house will
  be located, the design of the house, WHEN it will
  be built, and WHO will live in it. Consultation
  occurs only when they ask us, What colour would
  you like the House to be? Thats it. We are
  not asked if we want the house built, or what its
  design should be, merely what colour the house
  should be. Consultation, as it currently occurs,
  is mere rhetoric and window dressing.
• Chief Stewart Phillip

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The Historical Jurisprudence

• CONSULTATION HAS BEEN IN THE COURTS FOR OVER TWO
  DECADES.
• SCC Jurisprudential Developments began in
• 1973 Calder v. B.C.(A.G.) (Litigation in
  Aboriginal Title) 1985 Guerin (Intro to
  Fiduciary Doctrine), that laid the conceptual
  groundwork.
• Mentioned again in 1990 R.v. Sparrow, it was not
  until the 1997 Delgamuukw decision that the legal
  duty took an actual discernable form. BUT it was
  contained in larger Constitutional questions.
  (Sec. 35(1) Constitution Act)
• INDIAN BANDS however, continued to face a LACK OF
  PROCESS and inclusion before land and resource
  deals are struck that affect traditional
  territories and economies.
• ONLY in RECENT LITIGATION was this duty was taken
  seriously and government was ordered out of their
  apathy. ABORIGINAL LED Litigation and court
  injunctions threaten resource development
  projects and force a respect for Aboriginal
  rights.

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The 2005 Consultation Trilogy

• The 2005 Consultation Trilogy of Haida, Taku
  River Tlingit and Mikisew cases has reverberated
  across Canada.
• On November 18th 2004, the Supreme Court of
  Canada handed down two ABORIGINAL RIGHTS
  companion cases,
• Taku River Tlingit First Nation v. British
  Columbia The Taku River First Nation opposed the
  effects of a proposal to reopen the Tulsequah
  Chief mine by building an industrial highway
  through the heart of the Tlingits traditional
  territory.
• Haida Nation v. British Columbia
• Unproven Aboriginal Rights/Title Claim of
  Haida Gwaii, where the Province of B.C. issued a
  Tree Farm License transfer to Weyerhaeuser to
  harvest trees in traditional Haida territory.
• Together Taku and Haida cases, provide a
  FRAMEWORK for consultation on ASSERTED but NOT
  yet PROVEN Aboriginal Rights.

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The SCC Haida Test

• Haida set out a Three part Test for consultation
• Whether there is a prima facie claim for
  Aboriginal Title or Rights?
• Whether there is a potential infringement of
  Title or Rights?
• Determination of Level of consultation based on
  the STRENGTH OF THE CLAIM and the seriousness of
  the Infringement.

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The SCC Mikisew Cree Treaty Rights Decision

• Mikisew Cree First Nation v. The Minister of
  Heritage The Treaty 8 Band sought a judicial
  review of a parks Canada decision to build a road
  through Mikisew traditional territory which would
  have an injurious affect on their lifestyle. (Cut
  through trap lines/firearm ban/Disrupt migration
  patterns etc.)
• The crown BREACHED its duty to consult that flows
  from the Honour of the Crown and its obligation
  to respect the existing treaty rights of
  Aboriginal people.
• That court held that the Mikisew were entitled to
  a distinct process as the right at risk was a
  Constitutional one.

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When is the Duty Triggered?

• Whenever the CROWN has KNOWLEDGE or CONTEMPLATES
  ACTION (approval) that could negatively impact Ab
  Rights.
• MUST OCCUR PRIOR (Haida/Taku)
• The Crt has held Aboriginal peoples interests
  must be reflected in the decisions and not after
  the fact for cosmetic details only.

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The Court finds a Source

• In Aboriginal Rights that are ASSERTED and NOT
  YET proven in Canadian Courts, THE SOURCE of the
  duty is, THE HONOUR OF THE CROWN, rather than a
  fiduciary duty. (Haida)
• Aboriginal interests merely claimed are
  INSUFFICIENTLY specific to mandate that the Crown
  act in the best interest of the Ab Nation.
• a PROXY for Fiduciary Doctrine, imposing
  obligations on the Crown when it cannot be said
  that the Crown is exercising control over
  established legal interests.

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Source Cont

• Fiduciary Duty arises ONLY when the crown is
  dealing with a specific legal interest on behalf
  of a First Nation.
• IN ACTUALITY, the source of the Crowns Duty to
  consult the holders of Aboriginal and Treaty
  Rights should be the sovereignty jurisdiction
  of Aboriginal Governments.

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Consultation Tenants

• Must be MEANINGFUL GOOD FAITH
• Must be conducted when action is CONTEMPLATED and
  PRIOR to (at planning stage)
• THE DUTY comes BEFORE FINAL CLAIMS RESOLUTION
  (Meant to PRESERVE THE ABORIGINAL INTEREST
  PENDING CLAIMS RESOLUTION).
• The SCC contemplates this broader purpose
• THE PRESERVATION OF LANDS RESOURCES TO ENSURE
  ABORIGINAL RIGHTS/TITLE ARE PROTECTED AND THE
  INCORPORATATION OF ABORIGINAL LAWS INTO LAND AND
  RESOURCE DECISIONS.

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How?

• Consultation must be MEANINGFUL and in GOOD
  FAITH.
• Govt MUST provide complete details of the
  proposed decision or activity AND gather the FULL
  INFORMATION of Aboriginal community VIEWS and
  IMPACTS (Jack, Halfway).
• Information must be specific to the rights
  impacted and not just standard information
  (Mikisew).

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Crowns Duties..

• Demonstrably integrate the F.N. concerns into the
  proposed plan of action (Halfway).
• Ensure Aboriginal Groups are OFFERED a
  consultation process which allows their rights to
  be fully considered and protected (Halfway,
  Mikisew).
• Consult with Aboriginal people before
  implementation and DONT WAIT for them to come
  and ask (Sampson).

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Who has the duty to Consult?

• The Crown Federal and Provincial
• All Representatives/Agents of the Crown including
  Ministries, Agencies, Crown Corps, Managers and
  other delegated authorities.
• Aboriginal People
• The court has held the consultation is a two way
  street and imposed an obligation on the
  Aboriginal groups to consult with Govt. Refusal
  is deemed unreasonable.

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ABORIGINAL OBLIGATIONS

• UNREASONABLE findings included
• WITHDRAWL from the consultation process or
  REFUSING to consult at all (Ryan, Kelly lake,
  Aleck).
• DEMAND for further consultation in order to STALL
  the decision making process(Kelly Lake).
• PLACE PRECONDITIONS on their participation
  (moratorium or veto, co-management agreement)

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AVOID A FINDING OF UNREASONABLE

• Make all reasonable attempts to develop a process
  ACCEPTABLE to your COMMUNITY. (Halfway,
  Cheslatta, Mikisew)
• Communicate CONTINUALLY w/Govt about the REASONS
  FOR REFUSAL in a unreasonable consultation
  process MAKE recommendations for how they could
  amend their process to be more meaningful. (Noel,
  Mikisew)

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Avoid UNREASONABLE

• CONTINUALLY voice concerns while at the same time
  EXPRESS a WILLINGNESS to participate. (Cheslatta)
• OUTLINE claims with clarity, including SCOPE
  NATURE of the Right/Infringement (Haida).
• Make it clear (in a letter) if LACK OF FUNDING
  prevents full participation in the consultation
  process.

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Range of Consultation

• The CONTENT of the DUTY will also depend on the
  seriousness of the potentially adverse effects
  AND the Strength of the Aboriginal Claim.
• Mere Consultation Where claim is weak, little or
  no impact on Ab. Rts, Govt must inform and hear
  concerns.
• Moderate Consultation Govt must demonstrably
  integrate Ab Rts into decisions, minimize
  infringements, Accommodate and Compensate.

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Range cont..

• Deep Consultation Joint Decision Making process,
  Dispute Resolution Procedures, Creating
  Independent Administrative bodies, Compensation
• Consent Impact on Aboriginal Rights Significant,
  proposed plan interferes with Aboriginal Rights
  or the Exclusive Use
• The DELGAMUUKW crt held that full consent will be
  obtained in CERTAIN Aboriginal Title
  circumstances and ONLY with PROVEN RIGHTS!

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Accommodation

• Accommodation does NOT always occur
• The Duty to Accommodate is the duty to seek an
  INTERM COMPROMISE.
• Arrived at through GOOD FAITH ATTEMPTS and a
  ultimate agreement is not required.
• It requires balancing IMPACTS v.COMPETING
  SOCIETAL CONCERNS
• Examples Changing Plans, policy, law (Haida),
  Providing Economic Opportunity (Haida/Taku),
  Imposing terms on 3rd Parties (Haida/Taku)

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WHERE Does this Duty Apply

• All Crown Held Lands
• Surrendered Treaty Lands (Mikisew)
• Does NOT apply to Private Land Unless there has
  been extensive Government involvement
  (Hupacasath) (Paul)

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Third Parties

• Third Parties DO NOT have an obligation.
• Consultation is grounded in the HONOUR OF THE
  CROWN and belongs ONLY to the Crown.
• Third Parties can still be liable for not
  fulfilling duties imposed on them in LICENSES or
  PERMITS issued by the Crown.
• Third Parties have to be sure that the Crown has
  fulfilled its obligations or RISK the loss of
  their licenses etc.

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Funding

• The Federal Court has in Platinex Inc. v.
  Kitchewuhmaykoosib Inninuwug First Nation
  (2007)(known as KI) held it appropriate for the
  Govt to fund Aboriginal participation in
  consultation.
• Meaningful Consultation will not occur if a F.N.
  does not have the means to effectively
  participate.
• Indeed, the Honour of the Crown should require it
  to fund Aboriginal participation in these
  processes.
• B.C. v. Okanagan Indian Band, Xeni Gwetin First
  Nations v. B.C., The Court ordered the Province
  to pay Aboriginal crt costs when they had to
  litigate to prove their Rights fight a
  Provincial infringement.

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Consultation WITHIN Aboriginal Communities

• Aboriginal Governments may have the duty to
  consult with its membership about communally
  shared rights/interests.
• Klahoose Case- BCSC turned down band for an
  injunction against its own members from blocking
  a road because it had NOT consulted with its
  membership prior to altering a previously agreed
  upon logging plan.
• Bands may have to consult with all residents,
  band and non-members those who may be IMPACTED
  by any decision (Corbiere).

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Other Sources of the Duty to Consult

• Administrative Law/Tribunals
• Contracts/Agreements between Aboriginal People
  and Government
• Modern Treaties
• International Commitments

35
ORIGINS OF THE HONOUR OF THE CROWN

• CENTURIES old BRITISH CONCEPT of acting
  honourably for the sake of the sovereign.
• Judicial sentiments, found its beginnings in the
  dissent judgment from 1895 in a case called,
• Re Indian Claims. Wherein, Gwynne J. held that
  the British Sovereigns PLEDGED FAITH HONOUR
  when entering into treaties with the Indians,
• Later in R.v. Secretary of State, Lord Denning
  found that the transfer of treaty obligations
  from the Imperial Crown to the Crown in right of
  Canada, carried with it a duty to solemnly
  respect Treaty rights and obligations,

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Origins cont

• Unfortunately, this principle of TRUST, FAITH and
  HONOUR of the crown has NOT been consistently
  applied through subsequent years by the
  judiciary.
• In some instances completely ignored, therefore
  making it convenient for the Crown to also
  ignore.
• St. Catherines Milling, where he held that
  Aboriginal peoples interest in their lands was a
• personal and usufructary right, dependant upon
  the good will of the Sovereign.
• And in the same case by Justice Tashereau, who
  stated,
• The Indians must in the future...be treated with
  the same consideration for their claims and
  demands that they have received in the past, but,
  as in the past, it will not be because of any
  legal obligation to do so, but as a sacred
  political obligation, in the execution of which
  the state must be free from judicial control.
• THIS PERCEPTION OF THE LEGAL OBLIGATIONS OWED TO
  INDIANS AS BEING MERELY POLITICAL OBLIGATIONS
  CONTINUES TODAY.

37
HOLD THE CROWN TO STANDARDS SET BY THE COURT

• The Duty to consult is enforceable on its own
  without proof WHENEVER the crown has Notice or
  KNOWLEDGE of a credible Aboriginal Right.
• CONSULTATION alone is NOT ENOUGH to meet the
  Crowns obligation under Sec 35(1) to justify any
  infringement.
• Govt must show that it RESPECTS the
  CONSTITUTIONAL nature of Aboriginal Rights.

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Consultation Decisions

• There are several cases wherein the Courts have
  found the CROWN BREACHED its duty to consult.
• There are NONE that have actually stopped the
  proposed action by the crown.
• BUT there is now a Legal and enforceable duty
  that is there for our use (albeit imperfect).

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Other Decisions

• Platinex Inc. v. Kitchewuhmaykoosib Inninuwug
  First Nation (2007 FC)
• Little Salmon/Carmacks v. Yukon (Minister of
  Energy and Mines)(2007 YKSC)
• Dene Tha First Nation v. Canada (Minister of
  Environment) (2006 FC)
• Saulteaux First Nation v. Canada (A.G.)(2007
  BCSC)
• Acadia Band v. Canada (Minister of Natural
  Revenue) (2007 FC)
• Native Council of Nova Scotia v. Canada (A.G.)
  (2007 FC)
• Hiawatha First Nation v. Ontario (Minister of
  Environment)(2005 OJ)
• Hupascath First Nation v. B.C. (Minister of
  Forest)(2005 BCJ)
• Musqueam Indian Band v. B.C.(Minister of
  Sustainable Resource Management) (2005 BCCA)
• Many other lower court decisions

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Empower Yourself

• Despite the directions from the SCC, Govt will
  continue to NARROWLY DEFINE their consultation
  duties.
• Know your Land and Laws
• Know what Consultation is
• Know what you need from the Consultation Process
• Develop your own Consultation Policy

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Your Consultation Policy

• Will outline the process of assessment of
  projects.
• Values that are important to protect.
• Process for band membership input.
• Setting out conflict resolution procedures.
• Ways of determining what technical info needed,
  ie Impact/Traditional use Studys
• Steps in Approval, Amendment or Denial of projects

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Your Policy

• Many First Nations have developed policies that
  can be used as a guide.
• Nishnawbe Aski Nation drafted a handbook on
  Consultation in Natural Resource Development.
• HulQumiNum Member First Nations ( Treaty
  Group)
• Federation of Saskatchewan Indian Nations

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Consultation is not enough

• Public Pressure and awareness increase pressure
  on Govt. Start Parallel Actions.
• Launch Public Info Campaigns to build support.
• Form alliances with other parties.
• Organize consumer boycott campaigns.
• Seek Legal Advice and prepare contingency legal
  action.
• Prepare a Direct Action Strategy.

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Declare your Nationhood

• The SCC in Haida held that Ab Govts must raise
  their Rights in a way the puts the Crown on
  Notice as to their existence.
• Reassert your relationship with your Territory
• Declare your Nationhood, affirm the existence of
  your rights through a Declaration communicated to
  all governments and corporations doing business.
• Proceed from a position of unity with fully
  involved Community Members.

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In Conclusion

• We find ourselves without any real home in
  this, Our own country... Our people are fined and
  imprisoned for...using the same game and fish
  which we were told would always be ours for food.
  Gradually we are becoming regarded as trespassers
  over a large portion of this...Our
  country.       
• Chiefs of the Shuswap Letter to Prime Minister
  Sir Wilfrid Laurier (1910)

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Conclusion

• USE THE LAW OF CONSULTATION to protect the
  integrity and Health of YOUR land.
• LEGAL and POLITICAL KNOWLEDGE will empower
  Aboriginal Govts to TRANSFORM the consultation
  processes so they are no longer controlled by
  Govt or industry goals.
• IMPLEMENT our OWN DEFINITIONS of CONSULTATION
  processes so they reflect Aboriginal laws and
  Jurisdictions.
• REMEMBER. The HONOUR of the crown DOES NOT change
  with the POLITICAL POWERS of the day The
  existence of Sec. 35(1) is a Constitutional
  imperative to ensure that the crown lives up to
  its historical obligations.

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Questions/Resources

• Contact info
• Leah M. Bitternose
• Email lmb931_at_mail.usask.ca
• RESOURCES USED
• Gordon Christie, Developing Case Law The Future
  of Consultation Accommodation, University of
  B.C. Law Review, (2006) 39 U.BC.L.Rev. 139-184
• EAGLE Law, Nation to Nation, The Law of
  Consultation and Accommodation, www.eaglelaw,org
• Jurisprudence