Introduction to Duty to Consult and Accommodate and Impact

and Benefit AgreementsNaiomi MetallicNaiomi Metallic

CESD 3216 – CESD and the LawJanuary 25-26, 2010

Part 6

The Duty to Consult and Accommodate

What is it?

Constitutionally-based law that provides some protection to Aboriginal rights, Treaty rights, Title, Self-Government (proven or credibly asserted) from government-approved activities that can negatively impact those rights.

Haida Nation v. BC & Weyerhaeuser, 2004

Facts : Province issued tree farm licenses to Weyerhaeuser company over lands subject to Aboriginal title claim by Haida, without any consultation with Haida.

Ruling: Crown knew of the Haida’s claim to the territory and failed to consult with them. This was a breach of the duty to consult. Licenses issued by Crown were set aside.

Taku River First Nation v. BC, 2004

Facts: Province approves mining project on lands subject to comprehensive land claim negotiated between BC, Taku and Canada. Project was subject to environmental assessment process that was specially tailored to involve Taku and take their concerns into account.

Ruling: Crown had duty to consult and accommodate Taku over project. Specially tailored environmental assessment process was sufficient to meet these obligations. No breach of duty.

Mikisew Cree First Nation v. Canada, 2005

Facts: Minister of Parks Canada approves winter road running through Mikisew reserve, without consulting them. After Mikisew protested, the road alignment was modified (but without consultation) to go around the boundaries of the reserve. Mikisew challenged second road alignment because it ran through family trap lines and would affect hunting.

Ruling: Changing the road alignment a second time, without Mikisew input, was in breach of Crown’s duty to consult and accommodate.

What do we know about the duty to consult and accommodate so far?

1. Protects asserted, but unproven, Aboriginal rights and interests from Crown or third-party activities, projects, policies, laws that can impact on those rights and interests. First Nations do not have to prove existence of

the right like in court. A “credible assertion” of an Aboriginal right is sufficient to trigger the Crown’s duty to consult. It is a low threshold.

Only the Crown (federal and provincial governments) has constitutional duty to consult and accommodate; not third-parties (i.e., project proponents / industry).

But Crown can delegate “procedural aspects” of duty to consult to third parties. Delegation has to be intentional, not because Crown is ignoring its duty to consult and accommodate.

2. Crown’s duty arises when: (a) there is a project, policy, law, etc., that that the Crown is in involved with, and (b) Crown knows, or should know, that the project, policy, law, etc., will impact on Aboriginal rights and interests. Government project or government

involvement in third party project, which can include issuing permit or licence, project approval through environmental assessment process, possibly financial support of project.

Giving Crown notice in the past, or putting the Crown on formal notice of the Aboriginal claim, or being in negotiation in the Crown are things that can trigger Crown’s duty.

The weakness or strength of the asserted right does not impact whether there is a duty, but will impact the extent of duty.

3. What is required of the Crown to fulfill the duty depends on the circumstances: A weak claim of Aboriginal rights and a project

having only a small impact on those rights, might only require to Crown to give notice to the group about the project, listen to their concerns, and make some effort to address them.

A strong rights claim and project that could have significant impact on those rights, will require deep consultations, that may include ensuring Aboriginal group has access to all relevant information on the project, have opportunities to voice concerns and make recommendations on how those can be addressed, and be part of the decision–making process.

3. What is required of the Crown to fulfill the duty depends on the circumstances (cont’d):

A special consultation process just for the Aboriginal group is not necessary, if the existing process is sufficiently tailored to ensure the group is actively in the decision-making process.

But inviting the group to participate in a general public consultation is not good enough.

4. Even for strong claims, the process will involve give and take. There is no duty to agree, and Aboriginal groups do not have a veto.

But Crown is required to seriously consider the concerns of the Aboriginal group and take steps to address these.

“Consultation that excludes from the outset any form of accommodation would be meaningless. The contemplated process is not simply one of giving the [Aboriginal group] an opportunity to blow off steam before the Minister proceeds to do what she intended to do all along.” Mikisew

Good faith is required on both sides. Crown cannot engage in sharp dealing, and Aboriginal group must engage in the process by making their concerns known, responding to the government’s attempt to meet their concerns and suggestions, and try to reach some mutually satisfactory solution.

How can economic opportunities arise from the duty to consult and accommodate?

Key is accommodation In Mikisew, the Court said that consultation

that excludes any form of accommodation would be meaningless.

First Nation must have be allowed to have a say in accommodation. Unilateral accommodation, like that in Mikisew, is “the antithesis of reconciliation and mutual respect”.

But no duty to agree.

What is Accommodation?

Alter project design to minimize impact on right

Economic participation in project – revenue sharing or employment / training agreements

Land transfers for lost land or resources Financial Compensation for lost land or

resources Combinations of the above

How to spot a C&A opportunity:

Natural resource project within your territory– Logging– Aquaculture – Farming– Mining & oil exploration– Alternative energy projects (windmills, turbines)– Highways, pipelines, roads– Buildings on title or sacred lands

On Crown land, reserve land, or sometimes even private lands

After you’ve spotted C&A opportunity:

Bring to attention of appropriate designate in your community– Consultation and Accommodation Office / Officer– Chief and Council– Regional / provincial Aboriginal organization,

e.g., KMK, etc. Letter writing Legal analysis Negotiation & Agreements

– With Government– With Industry - Impact and Benefit Agreements

(IBAs) Litigation

Impact and Benefit Agreements

Private business and industry have no legal duty to consult, by it makes a lot of sense for them to do so anyway:

…it is now becoming clear that while the obligation to consult resides with

government, not private business, it will be in the best interest of industry to corporate leaders to get with the agenda.

Why should private business and industry get involved in consultation and accommodation?

Government might require as part of permitting / licencing process (delegation of Crown’s duty)

It makes good business sense:– Avoids delays in project, possible legal battles,

lawyers fees– Fosters positive relationships with First

Nations community• Capitalize on First Nation labour force• Encourage First Nation investment

(financial , resources, or land)

Economic opportunities that can be part of an IBA

Employment opportunities Training and education opportunities Scholarships Capacity building Community development (infrastructure, social

programs, language programs, etc.) Contract and business opportunities Co-management, joint venture or partnership

opportunities

Other benefits that can be part of an IBA

Environmental protection and mitigation measures

Health and wellness measures and monitoring Process for gathering and respecting

traditional knowledge Ongoing research into First Nation’s culture,

history, use and occupation, and socio-economic status

Cross-cultural awareness and sensitivity training for project employees

Things to watch out for when getting involved in an IBA

Pressure by proponent to sign so that project deadlines can be met

Not enough time to properly study environmental, health, economic, social and legal impacts of project

Technical team should be formed to study all possible impacts (lawyers, engineers, biologist, traditional users)

Traditional Knowledge and Use Study should be done before entering IBA

Things to watch out for when getting involved in an IBA (cont’d) Before signing an IBA, there should a prior

agreement to negotiate the IBA that includes:– Funding by proponent for hiring technical

people and conducting studies of impacts of project

– Reasonable timelines for conducting studies and negotiations

Things to watch out for when getting involved in an IBA (cont’d) An IBA should be balanced:

– Not just focused on economic opportunities, but consider environmental, health and social needs of community as well.

– Some First Nations sign 3 agreements: Impact Benefits, Environmental and Socio-Economic Agreements

Things to watch out for when getting involved in an IBA (cont’d) If the project is in phases, with the possibility

of it having different impacts (environmental, social, health, economic) at different points:– IBA should foresee possibility for further

negotiation if circumstances change Generally, should include clause that

agreement will be reviewed and reassessed after a period of time (e.g., 5 years)

Final points to remember when getting involved in an IBA

First Nation should not feel rushed or bullied into accepting first thing proponent offers – litigation and direct action, are ways to push back

There needs to a team with expertise to assess full impacts (environmental, social, economic, health, legal, etc.) of the project – cutting and pasting from another First Nation’s IBA on a different project is not a good idea

End Wela’lioq

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