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.