15th Aboriginal Land Resources Management Conference

Vancouver, January 28, 2015

Introduction

• no one size fits all for benefit agreements

• dependent on the capacity and vision of each First Nation

• all agreements must address two fundamental issues

• First Nations’ interest in and jurisdiction over their land

Indigenous Interests in the Land

Non-Treaty First Nations:• not just dots on a map

Treaty First Nations:• 'cede, release and surrender'?• contrary to inherent limit on

Aboriginal title• contrary to honour of the Crown

& fiduciary duties

Provincial obligations

• provinces saddled with the all the obligations of the Crown

• treaty obligations, honour of the Crown and fiduciary obligations

Expectation of Consent

• consent does not equal veto

• industry runs serious risk:

• authorizations quashed

• damages awarded

Duty to Consult often not Enough

• duty to consult as a procedural right

• governments will often have to justify infringements

• compelling/substantial objective consistent with fiduciary obligations

• to be compelling/substantial must be considered from both indigenous & non-indigenous perspective and must further reconciliation

Duty to Consult not Enough (continued)

• infringement must be necessary to achieve the objective

• must minimally impair

• benefits to general public can't be outweighed by negative effects on FN

Comprehensive Treaty Processnot the Solution

• Canada's 'new' policy still based on extinguishment

• policy must reflect principles from Tsilhqo'tin and UNDRIP:

•right to decide how lands are developed (or not developed)

• right to benefit

Bilateral Agreements

• advantage of separate agreements with industry and government

• both recognize interest in the land and reflect ongoing decision-making authority

Government-to-Government agreements

• include benefits and decision-making

• strategic planning

• address First Nation structural deficits

• important that they include mechanisms for future decision-making

First Nation-industry agreements

• upstream of provincial processes

• strategic-level, long-term planning, operational planning

• regulatory approvals (pre-application)

• should reflect traditional knowledge, values and decision-making

• consent through consensus

Thank you for your time

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