BUILDING ABORIGINAL RELATIONSHIPS IN BC

Date: September 20 and 21, 2016

• … In respect of this Proclamation, it can be said that when other exploring nations were showing a ruthless disregard of native rights England adopted a remarkably enlightened attitude towards the Indians of North America. The Proclamation must be regarded as a fundamental document upon which any just determination of original rights rests.

• . . . with this assertion [ of sovereignty] arose an obligation to treat Aboriginal peoples fairly and honourably, and to protect them from exploitation.

• … In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably ’ …

• Haida, supra, at paras. 32 and 17.

• The duty is grounded in the honour of the Crown, which is a “core precept” that in all instances informs the Crown’s dealings with Aboriginal peoples.

• When contemplating decisions with the potential to interfere with constitutional rights, the Crown must ensure that constitutional rights are identified, recognized and protected through a meaningful process of consultation and accommodation that accords with the honour of the Crown.

• Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.

TSILHQOT’IN

• [17] In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] SCR 511, the Court applied the Delgamuukw idea of involvement of the affected Aboriginal group in decisions about its land to the situation where development is proposed on land over which Aboriginal title is asserted but has not yet been established. The Court affirmed a spectrum of consultation. The crown’s duty to consult and accommodate the asserted aboriginal interest “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” (para. 39). Thus, the idea of proportionate balancing implicit in Delgamuukw reappears in Haida. The court in Haida stated that the crown had not only a moral duty, but a legal duty to negotiate in good faith to resolve land claims (para. 25). The governing ethos is not one of competing interests but of reconciliation.

• Treaty rights engage a different analysis. Consultations begins with the premise that the Treaty beneficiaries are entitled to what the Treaty provides. The Crown is presumed to have knowledge of its Treaty commitments; the analysis moves to assessing the potential a Crown decision has for interference with the Treaty rights since Treaties must be honourably implemented.

• Engagement with First Nations must occur for strategic level, administrative, and operational decisions.

• Reconciliation requires Crown obligations to arise prior to ‘proof’, as otherwise when ‘the distance goal of proof is finally reached, the Aboriginal people may find their land and resources changed and denuded. This is not reconciliation.”

• Haida, supra, at para. 33.

• Honourable engagement means governments and courts must give proper weight to the Aboriginal perspective.

TSILHQOT’IN

• [89] ... If the Crown fails to discharge its duty to consult, various remedies are available including injunctive relief, damages, or an order that consultation or accommodation be carried out: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010 2 SCR 650

TSILHQOT’IN

• [79] ... Where consultation or accommodation is found to be inadequate, the government decision can be suspended or quashed.

TSILHQOT’IN

• [92] Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.

BIG PROJECTS AND ENVIRONMENTAL ASSESSMENTS

• What we have been seeing lately is consultation issues arising out of environment assessments like National Energy Board (“NEB “)

• These cases are in the context of a 5 phase consultation framework Canada has established to fulfill its duty to consult and accommodate

• For big projects: First 3 stages are within the tribunal’s process – stage 4 is consultation after the board has made its recommendation where supplemental consultation occurs, and stage 5 is cabinet decision

SOME KEY DECISIONS AND DEVELOPMENTS

• Coastal First Nations v BC (Environment) 2016 BCSC 34. The BCSC found that a portion of the Equivalence Agreement entered into between the BC Environmental Assessment Office and the National Energy Board was invalid to the extent that it abdicated the Province’s decision making authority by removing the need for the Project to be granted an Environmental assessment certificate. The Court found that Crown breached the honors of the Crown by failing to consult with the Coastal First Nations prior to deciding not to terminate the Agreement. The decision makes clear that the province cannot abdicate its duty to consult to the federal government in respect of projects that require both federal and provincial approval.

• Gitxaala Nation v Canada, 2016 FCA 187. The Federal Court overturned Canada’s approval of the Northern Gateway Pipelines Project, agreeing with the Indigenous Nations that Canada failed to fulfill its duty to consult, setting aside the Project’s approval and remitting the matter back to Cabinet for determination. The case turned on Canada’s failures during phase 4 - by focusing on the conditions (ie. accommodation), rather than on addressing individual Nations rights and impacts to them. Consultation is a Nation to Nation process.

• An issue with these judicial reviews is when exactly in the process is the correct time to challenge the decision. For example, in a recent decision in a judicial review brought by Tsleil-Wautwith the court held that the challenge to the scoping of the project based on interference to governance was premature. Another JR has been filed.

• The SCC has accepted leave to hear two cases where the issues will be about the power of tribunals, like the NEB in the consultation process. Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. and Hamlet of Clyde River v. Petroleum Geo-Services Inc.

• The issues include these questions: Does the tribunal have the duty to consult? Even if not, can the tribunal’s procedures for public engagement, (perhaps as implemented by the proponent) satisfy the Crown’s duty to consult? In any event, does the tribunal have the duty to satisfy itself that the Crown has fulfilled its duty to consult prior to exercising any statutory powers that the tribunal may have?

WHERE WE ARE NOW – THE COLONIAL PARADIGM HAS SHIFTED

A. Extinguishment Defeated

• Crown governments were required to justify the doctrines of discovery and terra nullius in Court; they were embedded in Crown extinguishment arguments which the SCC rejected. After 45 years of litigation the SCC held that Aboriginal title has not been extinguished in BC – not globally. The SCC also rejected Crown arguments that extinguishment was accomplished by the Crown granting interests in land, including fee simple which were incompatible with the continuation of Aboriginal title.

B. The TRC

• We laid our sorrows and burdens next to each other before the Truth and Reconciliation Commission (“TRC”) which resulted in 94 recommendations which address this question: How do we heal a national wound that caused such a spiritual rupture? Canada committed to implementing the 94 TRC recommendations including the UNDRIP as a step in remediating the cascade of misery and trauma resulting from an illegal colonial history.

C. UNDRIP

• After more than 20 years of discussion and negotiation, the UNDRIP was adopted. Canada now fully endorses the UNDRIP without qualification, removing its permanent objector status. UNDRIP is the most comprehensive, universal international human rights instrument providing a human rights framework for justice for the specific historical, cultural and social circumstances of Indigenous peoples. The principles of free prior and informed consent, and the right to self-determination are fundamental to this human rights framework

LEGAL PLURALISM

• The purpose of s. 35 “is to foster the ultimate reconciliation of prior Aboriginal occupation with de facto Crown sovereignty.”

LEGAL PLURALISM

• The architecture for a multi-juridical order in the best sense has been built through the courts. This is legal pluralism — different cultural narratives, world views, titles and jurisdictions co-existing and operating on the same landscape. This is not one order creating space for another; nor is it one order adopting elements of another; but rather the recognition of plurality of orders and the need to create mechanisms for the healthy, harmonious interaction between them.

TSILHQOT’IN

• [69] ... At the time of assertion of European sovereignty, the crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of aboriginal people who occupied and used the land prior to European arrival. The doctrine of terra nullius(that no one owned the land prior to European assertion of sovereignty) never applied I Canada, as confirmed by the Royal Proclamation of 1763. The Aboriginal interest in land that burdens the crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.

TSILHQOT’IN

• [70] The content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it: s. 109 of the Constitution Act, 1867; Delgamuukw.

PERSPECTIVES FOR ACHIEVING PEACE, PROSPERITY AND CERTAINTY

Obtaining consent - All uncertainties about whether the Crown has adequately consulted can be avoided by the Crown and companies, obtaining the consent of the Indigenous Nations concerned. This is preferable to an adversarial approach - trying to paper the record and upend the other in Court.

CROWN CONSTRAINTS AND OBLIGATIONS

John Borrows created this list of constitutional constraints and obligations on Crown sovereignty in order to preserve Canada’s constitutional order: • Recognition• Affirmation• Reconciliation• Non-extinguishment without consent• Prevention of the perpetuation of “historic injustice suffered by Aboriginal

Peoples at the hands of colonizers”• Not imposing unjustifiably unreasonable limitations• Not imposing unjustifiably undue hardships• Not unjustifiably denying preferred means of Aboriginal people exercising

rights• Minimal impairment• Allocating resources to Aboriginal peoples

Conserving resources for Aboriginal peoples• Protecting the safety of Aboriginal rights users• Ensuring economic and regional fairness• Measuring historic reliance on resource use for Aboriginal and non-Aboriginal

people

CROWN CONSTRAINTS AND OBLIGATIONS

• Structuring discretion• Giving priority (which varies with nature of right)• Providing for Aboriginal participation in resources development• Government reducing economic barriers for Aboriginal peoples• Managing change honourably• Compensation• Consultation• Accommodation• Administrative law procedural safeguards• Legislative dispute resolution legislation• Mitigation strategies• Promoting federalism, democracy, rule of law, and protection of minorities • Not violating Aboriginal individual’s Charter rights• Tsilhqot’in and the UNDRIP added to this list:

• free prior and informed consent;• Absent consent, a fiduciary standard which includes the principle

that Crown decisions must further the goals of reconciliation; and• not substantially depriving future generations of the land

TSILHQOT’IN

• [97] I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

PERSPECTIVES FOR ACHIEVING PEACE, PROSPERITY AND CERTAINTY

• Crown and companies should seek out what obtaining consent means for the affected Indigenous Nation – each Nation is different.

PERSPECTIVES FOR ACHIEVING PEACE, PROSPERITY AND CERTAINTY

Education and respect. The TRC called on every sector of society – individuals, companies and governments - to educate themselves by forming relationships with Indigenous Nations, listening and sharing. The legacy of denial, and the doctrine of terra nullius cannot be reversed without this. Seeking out how consent is obtained is a start to required education about the Nations’ governance. Processes for engagement and project impacts are not about consultation through a narrow lens, but requires understanding Indigenous governance, laws and legal orders, worldviews, and the equivalency of economic interests .

• … At the time of the assertion of British sovereignty, North America was not treated by the Crown as res nullius.

• … European settlement did not terminate the interests of Aboriginal peoples arising from their historical occupation and use of the land. To the contrary, Aboriginal interests and customary laws were presumed to survive an assertion of sovereignty.

• . . . Put simply, Canada’s Aboriginal People were here when the Europeans came, and were never conquered.

• The right to determine the appropriate use of the land to which an Aboriginal nation holds title is inextricably bound up with that title. First, it is aboriginal law which is part of the source of Aboriginal title. Second, the right to decide how to use that land is also a part of the right – part of Aboriginal title ‘in its full form.’

• The right to Aboriginal title ‘in its full form’ including the right for the community to make decisions as to the use of the land and therefore the right to have a political structure for making those decisions, is, I conclude, constitutionally guaranteed by Section 35.

• ... I have also concluded that the Constitution Act, 1867 did not distribute all legislative power to the Parliament and the legislatures ...

“For us, the ownership of territory is a marriage of the Chief and the land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters came power. The land, the plants, the animals and the people all have spirit that will/must be shown respect. This is the basis of our law.

The Chief is responsible for ensuring that all the people in his House respect the spirit of the land and all living things. … My power is carried in my House histories, songs, dances and crests. It is recreated at the Feast when the histories are told, the songs and dances performed and the crests displayed. With the wealth that comes from the respectful use of the territory, the House feeds the name of the Chief in the feast hall. In this way the Chief, the territory, and the Feast become one. ... By following the law, the power flows from the land to the people through the Chief, by using the wealth of its territory.

PERSPECTIVES FOR ACHIEVING PEACE, PROSPERITY AND CERTAINTY

Capacity funding to engage in consultation is an essential cost of doing business. In reality consultation is expensive - most Indigenous Nations are overwhelmed by the number and magnitude of the consultations processes affecting them. If companies and government want to lower the risks generated by conflict, Indigenous Nations must be properly resourced to understand the benefits of the project, potential impacts, and finding acceptable accommodations including mitigation measures.

PERSPECTIVES FOR ACHIEVING PEACE, PROSPERITY AND CERTAINTY

• Developing innovative partnerships. The duty to consult is with the Crown but the Crown can rely on companies to carry out the duty. But ultimately it is the companies and the Indigenous Nations who will become neighbors. Companies and Crown governments can learn how to be better guests on the territories of the Indigenous Nations and better stewards of Mother Earth.

THE PATH FORWARD

• Transitions between paradigms are forced by conflict and resolved by hybrid institutions

Alexander Graham Bell

RECOGNITION PRINCIPLES

These principles are derived from settled law and minimum standards set internationally, which Canada has endorsed. These principles are about changing a culture to recognition, respect and reconciliation.

1. Recognition of the pre-existence of sovereign peoples in BC who are the original owners and stewards of the lands and resources.

2. Recognition of the co-existence of Aboriginal and Crown titles, acknowledging that Aboriginal title has a jurisdictional and economic component.

3. Recognition that the relationship between Indigenous Nations and the Crown is a government to government relationship in which both parties have jurisdiction and authority to make decisions, including about how the lands and resources will be used and the resources shared.

4. Recognition that the dignity, well–being and survival of Indigenous Nations and their ways of life are vitally important and are dependent on the continuation of their relationships with their territories.

5. Recognition that extinguishment of title and rights is contrary to Indigenous laws. International standards and the Crown’s fiduciary and constitutional obligations.

RECOGNITION PRINCIPLES

6. Recognition that a human rights framework includes free prior and informed consent and the right to self-determination.

7. Recognition that the right to self–determination can include shared decision-making where both Crown and Indigenous governments have their own institutions of governments where both pass laws and share governance.

8. Recognition that free, prior and informed consent of Indigenous Nations when the Crown contemplates strategic decisions which will impact Indigenous territories is the honourable way to achieve peaceful relationships and certainty in the discharge of Crown obligations.

9. Recognition that the honour of the Crown depends on good faith negotiations, respectful treaty relationships and treaty implementation, the Crown fulfilling obligations based on principles of recognition of Aboriginal title and rights whose elements have been articulated by the SCC.

• It's a little embarrassing that after 45 years of research and study, the best advice I can give people is to be a little kinder to each other.

Aldous Huxley

Questions?

Thank you!LOUISE MANDELL, QC. LL.D. (HON.)

Mandell Pinder LLP422-1080 Mainland Street

Vancouver, BC V6B 2T4

Phone: 604-681-4146Fax: 604-681-0959

Email: louise@mandellpinder.com

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