Aboriginal Duty to Consult Challenges Faced by Industry Calgary April 17, 2014 Peter L Miller Constitution Act, 1982 • 35(1) The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed. 2 Challenge #1 Government Involvement 3 Crown’s Duty • The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development… However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated. • Haida 4 Passively Watching • “We cannot withdraw our cards from the game, were we as silent and mute as stones, our very passivity would be an act.” • Jean-Paul Sartre 5 Alberta Discussion Paper First Nations Consultation Greater Role for Alberta Centralized Consultation Office - Set Standards and best practices - Assure quality in process - Monitor implementation of Policy - Determine adequacy of consultation - Support Departments - Support industry 6 Challenge #2 Trigger to Consultation 7 Trigger to Consult • The duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. • Halfway River 8 Trigger to Duty to Consult • There is no at-large duty to consult that is triggered solely by the development of land for public purposes. There must be some unresolved non-negligible impact arising from such a development to engage the Crown’s duty to consult. • Broken Head Ojibway 9 Trigger to Duty to Consult • The claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on Aboriginal claims or rights. Mere speculative impacts will not suffice. • The duty to consult is triggered by an appreciable adverse effect stemming from current Crown conduct or decisions. • Rio Tinto v. Carrier Sekani SCC 2010 10 Trigger to Duty to Consult • Not every subsequent “taking up” by the Crown constitutes an infringement of a treaty right. Treaty rights are expressly limited to lands, not “required or taken up from time to time for settlement, mining, lumbering, trading or other purposes”. The Courts have rejected the argument “that any interference with the right to hunt is a prima facie infringement of the Indians” treaty right as protected by Section 35 of the Constitution Act 1982. This argument “presupposes that Treaty 8 promises continuity of 19th century patterns of land use. It does not…” • Mikisew Cree para 32 11 Challenge #3 Scope of Consultation 12 Scope of Duty • At one end of the spectrum lie cases where the claim to title is weak, the aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to a notice. …at the other end,… lie cases where a strong prima facie case where the claim is established, the right and potential infringement is of high significance to the aboriginal peoples, and the risk of non-compensable damage is high. In such cases, deep consultation, aimed at finding a satisfactory interim solution, may be required. …between these two extremes… will lie other situations. • Haida para 43 13 • “… given that the Crown is proposing to build a fairly minor winter road on surrendered lands where the Mikisew hunting , fishing and trapping rights are expressly subject to the “taking up” limitation, I believe the Crown’s duty lies at the lower end of the spectrum.” • Mikisew SCC 2005 14 Alberta Discussion Paper First Nations Consultation • Consultation Process Matrix – Categories of impact – Understand expectations – Effectively manage timelines – Ensure transparency of government decisions 15 Challenge #4 Duty to Provide Information 16 Duty to Provide Information • The Crown is under an obligation to provide all necessary information to the Aboriginal peoples in a timely way so that they may have an opportunity to express their interest and concerns. • Halfway River 17 Duty to Provide Information • To facilitate a determination of rights, claimants should outline their claim with clarity, focusing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements. • Haida para 36 18 Duty to Provide Information • Any future consultative process will require the applicants’ sharing their traditional knowledge and full meaningful participation in the consultation process. KA’A’GEE TU First Nation 19 • The First Nation also contended before us, it had no duty to tell the Board specifics, and that the Board should have frozen all development while deciding the question. We cannot agree, and we have seen no authority, constitutional or otherwise, requiring such a logical impasse. Bidson 20 What is Consultation? • Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed ... • ...genuine consultation means a process that involves...: • • gathering information to test policy proposals • • putting forward proposals that are not yet finalized • • seeking (FN) opinion on those proposals • • informing (FN) of all relevant information upon which those proposals are based • • not promoting but listening with an open mind to what (FN) have to say • • being prepared to alter the original proposal • • providing feedback both during the consultation process and after the decision-process • Haida SCC para 46 21 Challenge #5 Refusal to Engage 22 Duty to Provide Information • First Nations have a reciprocal onus to carry their end of the consultation, to make their concerns known, to respond to the Government’s attempt to meet their concerns and suggestions, and to try to reach some mutually satisfactory solution. • Mikisew para 65 23 REFUSE TO ENGAGE • Refusal to meet or participate as well as setting unreasonable conditions frustrates the process. Halfway River 24 REFUSE TO ENGAGE • Since the applicants have not justified their failure to participate, the applicants cannot now complain that their concerns were not considered in the preparation of the TK study. KA’A’GEE TU First Nation 25 Refuse to Engage • 117 … Given that the Stellat’en was not prepared to participate in consultation except on its own terms, however, the MEMPR cannot be faulted for not having engaged in more comprehensive or deeper consultations. • Louis B.C. C.A 2013 26 Challenge #6 Unreasonable Demands 27 Unreasonable Demands • First Nations must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart the Government from making decisions or actions in cases where agreement is not reached. Haida para 42 28 Unreasonable Demands • “ ... He implies that the Xats’ull would cause delays in the consultation ... Unless Gilbralter provided funding ‘right away’ to the Xats’ull for, among other things, an interim benefit agreement ....” • “If we cannot find agreement on mitigation which could accomplish relatively quickly, this could take a great deal more time as we will need to have much more discussion, possibly independent analysis (our consultants) of the discharge, we will need to find funding for this ....” • Xats’ull v. Gibraltar • B.C. Environmental Appeal Board 29 Unreasonable Demands • “Such an approach made by (the negotiator) on behalf of the Xats’ull does not amount to consulting in good faith, and verges on sharp dealing. Under the circumstances, the Panel is not prepared to entertain an application for costs from the Appellant.” • Xats’ull v. Gibraltar • B.C. Environmental Appeal Board 30 Challenge #7 How much is enough? 31 How much is enough? • So long as every reasonable effort is made to inform and to consult, so such efforts would suffice. The Government is required to make reasonable efforts to inform and consult; this suffices to discharge the duty. Haida (citing Nikal SCC) para 22 32 Challenge #8 No Veto 33 No Veto • 48 This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal "consent" spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. • Haida para 48 34 No Veto • Aboriginal rights deserve the full respect of Canadian society and judicial system. Those rights do not, however, automatically trump competing rights, whether they be government, corporate, or private in nature. Kruger, Ontario Court of Appeal 35 No Veto • “The consultation process does not mandate success for the First Nations interest. Is should, however, provide a satisfactory, reasoned explanation as to why their position was not accepted.” • West Moberly (C.A. 2011) 36 No Veto • “A reasonable process is one that recognizes and gives full consideration to the rights of Aboriginal peoples, and also recognizes and respects the rights and interests of the broader community.” • West Moberly (B.C. C.A. 2011) 37 UN Declaration on the rights of Indigenous Peoples • 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative