Consulting Indigenous

Communities:

The British Columbia

Experience Sigtuna, Sweden

May 5, 2017

Debbie Chan

Legal Counsel British Columbia Ministry of Justice Note the opinions and views expressed are my own and not that of the Province of BC.

Historic Treaties of Canada

Treaty 8 Disputed Boundary Area

Victoria

Tla’amin

Nation

Treaties in British Columbia

Treaty 8 Various BC bands signed in 1900-1914, McLeod Lake Indian Band

adhered in 2000

Douglas Treaties 14 treaties signed in 1850-1854

Modern Treaties Nisga’a Nation: 2000

Tsawwassen FN: 2009 Maa-nulth FNs: 2011 Tla’amin Nation: 2016

Constitution Act, 1982

Aboriginal Title Declared: Tsilhqot’in Nation v. BC, Supreme Court of Canada, 2014

Constitutional Duty to Consult

Haida Nation v. BC, Supreme Court of Canada, 2004:

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.

Scope of Consultation

Provincial Consultation Procedures

http://www2.gov.bc.ca/assets/gov/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations/legal_obligations_when_consulting_with_first_nations.pdf

General Consultation Principles

• Timing: Start early – as early a possible in planning stage.

• Process: Share information about proposed activity, what is known about Aboriginal Interests and potential impacts.

• Substance: Consider the need to avoid, minimize or otherwise address potential impacts.

Importance of Relationships

Proponent

First Nation Government

Government-to-Government Legal duty to consult

Applicant – Adjudicator Fair, timely, clear review process

Working/business relationship Early engagement Procedural aspects of consultation

Proponent – First Nation Relationships

http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations

Aboriginal or Treaty Right

(e.g. hunting, fishing, gathering)

Biophysical

Sites/Places

Social/Cultural/ Spiritual/

Experiential

Impact Assessment

George Massey Tunnel Replacement Assessment Report pages 176-7: https://projects.eao.gov.bc.ca/p/george-massey-tunnel-replacement/docs?folder=90

Aboriginal Title

Use and Occupation

Decision-Making

Economic Benefits

Impact Assessment

Duty to Accommodate

Haida:

• “Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement.”

Accommodation options:

• Avoidance measure (e.g. timing window, change footprint).

• Minimization measure (e.g. reduce term of permit).

• Other: monitoring, land use protection, financial benefits.

Federal Court of Appeal (June 2016): Gitxaala Nation v. Canada

• Federal approvals for project were quashed by the court.

• Although Federal decision was reasonable, duty to consult FNs was not adequately fulfilled.

Consequence of Not Meeting Duty to Consult

Legal Advice Subject to Solicitor-Client Privilege

Constitution Act, 1982

Mining and the Duty to Consult

BC Court of Appeal (May 2011): West Moberly First Nations v. BC • Government issued a Mines Act permit authorizing a bulk sample

and advanced exploration program.

• Government failed to consult adequately and meaningfully, failed to accommodate reasonably impacts on treaty right to hunt.

• Government needed to consider cumulative effects on caribou species at risk.

• Court suspended the effect of that permit pending further consultation and accommodation.

BC Supreme Court (December 2011): Taseko v. Phillips

• Court granted to a First Nation an interim injunction granted preventing company from proceeding with mining exploration activities.

• Delay and cost implications of injunction on mining company considered by court a “relatively minor inconvenience”.

Mining and the Duty to Consult

Yukon Court of Appeal (December 2012): Ross River Dena Council v. Yukon • Yukon’s free entry mineral claims staking regime does not allow for any

consultation with any First Nations. Claims holder could also undertake some mechanical exploration activities.

• “Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.”

• Court found Yukon has a duty to consult Ross River in determining whether mineral rights are to be available to third parties.

• Court also found that Yukon has duty to consult Ross River before allowing exploration activities to take place.

Mining and the Duty to Consult

Yukon

Duty to Consult

Deep consultation (Haida):

• “Aimed at finding a satisfactory interim solution”.

• “May entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision”.

Duty to Accommodate

Haida:

• “The 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.”

Consulting BC Aboriginal Groups in EAs

Collaboration between EAO and Aboriginal group: • Seek consensus on potential project

impacts on Aboriginal/treaty rights and accommodations.

• Collaborate on development of draft conditions.

• Timely and effective participation. • Fair, clear, neutrally administered,

transparent, predictable process. • Interest-based issues resolution.

Collaboration on Kemess Underground Mine EA

• EAO – TKN Collaboration Plan. • Collaborated throughout EA – including collaborative drafting of TKN

section of assessment report. • Collaborated on methodology of assessing impacts on Aboriginal title,

rights and interests. • Consensus on measures to mitigate impacts on Aboriginal title, rights and

interests at EA stage. • TKN letter of support (February 7, 2017). • EA Certificate issued (March 8, 2017).

Reconciliation in British Columbia

• 2005: New Relationship Vision Statement (Government-to-government relationship, based on respect, recognition and accommodation of Aboriginal title and rights).

• 2005: Transformative Change Accord (Address socio-economic gap).

Consultation Agreements • Strategic Engagement Agreements. Revenue-Sharing Agreements • Forestry. • Mining. • Resorts. • Clean Energy.

Reconciliation Agreements

Other Project/Sector Agreements (e.g. LNG)

Reconciliation in Canada • 2007-2015: Truth and Reconciliation Commission

• Address legacy of residential schools. • 2016: United Nations Declaration on Rights of Indigenous

Peoples • Canada announces that it is a full supporter, removes

qualifications previously placed by previous government.

• 2017: Federal Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples • February 2017: Ensure the Crown is meeting its constitutional

obligations; adhering to UNDRIP; supporting the implementation of the Truth and Reconciliation Commission’s Calls to Action.

• 2017: Canada review of environmental assessment process

• April 5, 2017: Expert Panel recommends the Indigenous peoples be included in decision-making at all stages of impact assessment, in accordance with own laws and customs.