Presentation Transcript

1. Short Title of Presentation Law of Aboriginal and Treaty Rights
2. Sparrow Van derPeet Gladstone Guerin Adams Campbell Delgamuukw Halfway River Musqueam Calder Haida Marshall Taku Musqueam Mikisew Hupacasath Platinex Morris Tsilhqot’in Nation Badger Rio Tinto Little Salmon Cases Reviewed 2 Duty to Consult & Accommodate National Centre for First Nations Governance
3. Inherent Right to Self-Governance Prior to the arrival of Europeans, First Nations people had their own systems of government. Governments were based on close relationships with the environment, connection to the ancestors and respect for generations to come. 3 Inherent Rights National Centre for First Nations Governance
4. The Duty is triggered when there is: the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; contemplated Crown conduct; and the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. Rio Tinto, supra, at para 31. 4 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
5. What does it apply to? Honour of the Crown is at stake where rights are not proven. Aboriginal Rights and interests must be considered at the “strategic higher-level decisions”. Applies to legislation, regulations, work plans or business plans. 5 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
6. Who does it apply to? Consultation must occur with First Nations as a collective and not individuals. Crown needs to canvas all points of view. May result in more consultation/accommodation for different groups within the same territory. 6 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
7. Provide Information First nations must outline claims of Title or Rights with clarity and focus evidence on rights asserted. Duty to Consult and Accommodate will be greater if the case for Aboriginal Right is strong and there is evidence of a serious infringement on Rights. 7 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
8. Spectrum Consultation is on a spectrum. Full consent may only apply to cases of existing Aboriginal Rights. Accommodation is not always required. Honourof Crown requires consultation and will seek balance and compromise between Aboriginal Rights and interests of society. 8 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
9. Delegation The Crown may delegate components of the Duty but ultimate responsibility remains with the Crown. Delegation applies to industry and private sector partners. Some lower courts are saying public consultation processes may be adequate. 9 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
10. Procedural Delegation Examples Include: - Notification - Assessment of potential impacts - Provision of information - Negotiation of agreement - Mediation/dispute resolution 10 Legal Obligations National Centre for First Nations Governance
11. Aboriginal & Treaty Rights Fiduciary Duty to protect Treaty Rights on land not surrendered . Duty to Consult and Accommodate for Inherent Rights that remain throughout traditional territory. Crown’s duty does not end when a Treaty or agreement is signed. 11 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
12. Remedies Can be sought if the Crown does not set up mechanism to deal with Duty. Trend is moving away from injunctions. Declaratory orders allow court to have ongoing supervision in the negotiation and allows for more creativity. Damages (money) may be an option but could be problematic. 12 Law on Duty to Consult and Accommodate National Centre for First Nations Governance
13. Crown: Act Honourably Provide information Transparent and timely process Meaningful Consideration of Aboriginal Interests Cannot delegate Duty Act in Good Faith Includes Crown corporations Aboriginal: Participate in Crown’s efforts to consult Cannot thwart Crown’s efforts Provide information & evidence on claim Legal Obligations 13 Legal Obligations National Centre for First Nations Governance
14. Industry: Meet all regulatory requirements Assist Crown, where reasonable, to carry out procedural aspects Municipalities: Case law does not set out specific role because they are not a level of government Refer to definition of “Crown” and “decision maker” Legal Obligations 14 Legal Obligations National Centre for First Nations Governance
15. Legal Applications Triggers for Duty to Consult occur by actions/potential action taken by the government not the First Nation. First Nations must respond. Lack of resources and capacity issues should be dealt with by Government, First Nations and Industry 15 Legal Obligations National Centre for First Nations Governance
16. Issues Case law does not define: - Consultation - Accommodation - Reasonable - Good faith - Timely - Procedural aspects 16 Issues National Centre for First Nations Governance
17. Issues (cont’d) Case law does not: -Incorporate Inherent Right to Self-Governance into consultation model -Set out full spectrum of consultation -Deal with overlapping jurisdiction -Determine mediation or dispute resolution -Determine capacity and funding 17 Issues National Centre for First Nations Governance
18. UN Declaration of the Rights of Indigenous Peoples Defines consultation as “free, prior and informed consent” Sets out a minimum standard Canada’s constitution must be informed by international law 18 Issues National Centre for First Nations Governance
19. Moving Forward Develop a proactive strategy. Expand land management capacity over traditional territory. Strengthen or build new governance institutions that reflect cultural and traditional practices. 19 Moving Forward National Centre for First Nations Governance