National Chief’s Task Force on Consultation & Accommodation

1. National Chief’s Task Force on Consultation & Accommodation Assembly of First Nations

2. Role of AFN – Supporting First Nations • Communication of First Nations’ policy perspectives • Promotion of greater awareness and respect of First Nations’ rights and interests • Facilitating relationship building between the Crown and First Nations • Advocating First Nations’ rights and interests

3. Origins of the Duties • Inherent Rights – rights pre-existing to colonization – recognized in s.35 of the Constitution Act • Treaties– Aboriginal title & rights identified in treaties give rise to duties to consult & accommodate according to the given Treaty • “Modern” treaties or self-government agreements also identify these duties • Common Law – recognition standard in court decisions, full enunciation of duties still evolving

4. Standards So Far • Courts have set some standards • Crown’s fiduciary duty means First Nations interests have priority over other interests • Duties to consult & accommodate apply to resource use as well as legislative & policy development • Crown must discharge & can not delegate duties • Duties to consult & accommodate are separate • Consultation along a continuum – from simple notification to full consent – based on the level of infringement/impact and the nature of a First Nation’s interests • Little direction yet on content of accommodation duty • Objective is reconciliation of Crown sovereignty with pre-existing Aboriginal title & rights

5. Critical factors in Consultation • Both the federal and provincial Crowns have a duty to consult • The Crown cannot delegate its fiduciary obligation to consult to a third party • Consultation must genuinely attempt to address First Nations’ concerns about the impact of an action on their rights, and have no predetermined outcome • Accommodation is the reconciliation of the sovereignty of the Crown with pre-existing rights of First Nations

6. Nature of Duties • Duties apply to any Crown action that may infringe an Aboriginal right or interest • Duty is triggered at the earliest instance, where there is potential or constructive knowledge of impact on First Nations’ rights or title, either established or asserted • First Nations also have a duty to engage in consultation – non-participation is interpreted as declaration of non-interest

7. Principle of First Nations’ Consent • Principle reflected in First Nations’ law and policy and is supported by the UN Declaration on the Rights of Indigenous Peoples, which recognizes that the free, prior, and informed consent of First Nations is required: • for development activities on First Nations traditional lands • in the development of legislative or administrative measures affecting First Nations • The UN Declaration recognizes that the right to self-determination – including the right to consent and to withhold consent – is held by each First Nation • Currently, under Canadian Common Law, consent is required in the instance of established rights and where the infringement is determined to be significant – determination of infringement impacts must be made with First Nations; cannot be done unilaterally

8. Resource Development • $350 Billion in resource development in & around First Nations territories over the next 10 years • Title, rights & interests will vary across the country depending on the First Nation involved • Process for consultation will depend on traditions & structures of First Nation involved • Conflict results in delay, increased costs, lost opportunity costs & deepened impoverishment of First Nations

9. Legislative & Policy Development • Crown must consult First Nations on policies or bills that may affect rights & interests • Legal duty exists in addition to consultation as a matter of good public policy • Unilateral Crown approach – which may infringe First Nations rights – will be subject to judicial scrutiny carrying the risk of a Crown decision or activity being held to be void or unenforceable • Such an approach is clearly counter-productive resulting in delay, high costs to all involved, ineffective policy development and ongoing implementation issues

10. First Nations Consultation Policies, Protocols and Agreements • A growing number of First Nations and PTOs have developed, or are in the process of developing, their own consultation protocols or policies • These often require • Early engagement by the Crown or developers & respectful relationship building • First Nations involvement in process design • Recognition of inherent and treaty rights, right of self-determination • Respect of First Nations right to consent where rights or interests may be negatively impacted • First Nations’ participation in decision-making

11. First Nations Consultation Policies, Protocols and Agreements • First Nations with comprehensive self- government agreements have negotiated legally-binding consultation provisions with the Crown and these agreements cannot be amended without the consent of the First Nation concerned. • Some self-governing First Nations also have negotiated separate consultation protocol agreements with other governments. • Implementation remains a critical concern, and in a number of cases treaties, protocols or provisions are not upheld by representatives of the Crown

12. Emerging Issues • The federal government has initiated a number of programs and legislative changes that may signal divergence from acceptable standards of consultation and accommodation. • These are: • Major Projects Management Office; • Amendments to Navigable Waters Protections Act; • Canadian Environmental Assessment Act (CEAA).

13. Major Projects Management Office • Streamline approvals for major resource projects into two years. Shift consultation requirements to project proponents. Navigable Waters Protection Act Amendments • Minister has complete discretion to list any lake, river, stream as a minor waterway. No Environmental assessment will be required for projects on minor rivers. • No requirement for notice, consultation or accommodation of First Nations interests or impacts from projects. • There will be infringements to FN water & navigation rights.

14. Proposed Changes to CEAA • No environmental assessments for any project on federal lands, where federally funded, or any federal infrastructure project worth less than $10 million. • Exempt any project from federal environmental assessment at the request of a provincial government. This could mean: • There will be a weakening of the duty to consult resulting from the exemption of EAs, as EA is a current tool recognized by the Courts as a consultation mechanism. • First Nation rights will increasingly be adjudicated under the realm of administrative law (judicial review of government decisions), rather than the higher level of constitutional law.

15. National Chief’s Task Force (NCTF) on Consultation and Accommodation • Response to call for a unified and coordinated First Nations approach to myriad efforts by federal government regarding Consultation and Accommodation • Intent to support First Nations governments in the development of protocols, processes and policies • Working with regional representatives to develop First Nations’ minimum standards for Crown behaviour

16. National Chief’s Task Force (NCTF) activities to date • Two meetings of full Task Force – January 28 & March 16, 2009 and two regional fora (East/West) took place March 2-3, 2009 • Represents the beginnings of the conversation – key preparatory work to develop coordinated FN position • Canada is pushing short timelines for input to policy approach – AFN is attempting to secure additional resources to continue work and coordinate a unified FN response, as directed by Task Force

17. National Chief’s Task Force (NCTF) proposed next steps AFN has developed proposal to INAC for support to: • Conduct in-depth analysis, including • A review of jurisprudence and govt. responses; • A legal analysis of the Federal Interim Guidelines • Synthesis of First Nation and indigenous approaches to consultation and accommodation • Models and mechanisms for dispute resolution • Using analysis and working with FN representation, develop the initial framework for a coordinated First Nation response, to contain minimum standards and requirements for Crown and industry behaviour • Convene a National Policy Forum to review and discuss response • Seek endorsement of coordinated position by Chiefs at the December 2009 Special Chiefs Assembly