Prepared for the Congress of Aboriginal Peoples By Alexandre Clément and

1. Engagement with First Nations, Métis, and Inuit Groups with regards to Consultation and Accommodation Prepared for the Congress of Aboriginal Peoples By Alexandre Clément and Pierre Cloutier de Repentigny

2. Outline of Presentation • Background on the project and methodology • Glossary of terms • Historic context leading up to the duty to consult • General policy questions regarding Consultation • Specific policy reviews and analysis • Best Practices CAP could incorporate into a future national policy position • Conclusion.

3. Background • CAP proposed to develop a national policy position paper on the Crown’s duty to consult on behalf of its off-reserve representative organizations. • CAP also proposed to research, identify and summarize different policy positions on this question.

4. Board meeting and discussions • CAP board of directors met in January to review and comment on a draft policy position paper developed by the researchers who were hired.

5. Presentation to Board • Historical Context of the Crown’s duty to consult • Definitions of Honour of the Crown, fiduciary duty and duty to consult and accommodation • Brief overview of Supreme Court cases and CAP affiliate cases • Brief overview of Federal and provincial policies: Quebec • Brief reminder of CAP position on the international side of the question: UN Declaration on Indigenous Rights. • Open discussion was held

6. Therefore..... • Today we will be presenting the results of the substantial academic research completed by the researchers on the general and specific policy questions provided to CAP by OFI.

7. Outcome of CAP Board meeting • CAP Board of Directors identified additional issues and concerns with respect to the duty to consult. These will be expressed in this presentation and in the final report. • HOWEVER • the overwhelming position of the CAP board of directors was that it was not possible to develop a national policy position at this time simply because there was no adequate opportunity (time and resources) given to hold meaningful consultations within their communities.

8. AND • This research may serve as a foundation upon which CAP may eventually build their national policy position. • The best practices presented as recommendations at the end of the power point and final report represent the minimum standards already accepted by the Canadian Courts, some provincial governments, industry policies and in the international arena. • The researchers have ventured to add some additional policy recommendations for CAP that may or may not ultimately be reflected in the CAP National Policy Position.

9. Research Methodology: Academics and Authors • Review of the main doctrine including well known academics and authors to answer general policy questions provided to CAP by OFI: • National: • J. Timothy S. McCabe, James I. Reynolds, Joseph Eliot Magnet, Dwight A. Dorey, Arbour, S. Grammond, Peggy Blair, Thomas Isaac, Robert Mainville, John Provart, John Currie, Heather L. Treacy, Tara L. Campbell, Jamie D. Dickson. • International: • James Anaya, William F. Felice, Richard Falk.

10. Research Methodology: Experts in Aboriginal issues • Sophie Thériault (University of Ottawa) • Sébastien Grammond (University of Ottawa) • Dwight Newman (University of Saskatchewan)

11. Policy review for specific questions • Federal government policy paper; • A selection of Provincial governments’ policy papers; • Industry policy position ; • Environmental assessment review of policy.

12. Methodology: summaries and final report • Summaries of significant policy information from the various sources was synthesized and will be included in the final report and annexes. • The final report will include best practices and recommendations for CAP.

13. Defining the terms • It is important for CAP affiliates to have clear definition of the terms being reviewed in order to be on an equal starting foot and on the same page when embarking on future negotiations and consultations. • The following definitions have been extracted from the doctrinal review, are compatible with case law, and international standards.

14. Glossary of terms: Honour of the Crown • Honour of the Crown “It is the concept of holding the Crown to high standards of honourable dealing with respect to the Aboriginal peoples of Canada”.[1] The principle of the Honour of the Crown comes from the “special trust relationship and the responsibility of the government vis-à-vis Aboriginal peoples”[2]. • Sources: Royal Proclamation, the Constitution, off shoots: fiduciary duty and duty to consult [1] J. Timothy S. McCabe, The Honour of the Crown and its Fiduciary Duties to the Aboriginal Peoples, (Markham: LexisNexis, 2008) at 54. [2]Ibid., p. 59

15. Glossary of terms: Fiduciary duty • « That where by statute, agreement or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carried with it a discretionary power, the party thus empowered becomes a fiduciary. Equity will then supervise the relationship by holding him to the fiduciary’s strict standard of conduct. » • Source: A Breach of Duty, James I. Reynolds

16. Characteristics of Fiduciary duty • It is inherent to the Honour of the Crown. • It is a fiduciary relationship between the government (the fiduciary) and the Aboriginal peoples (the beneficiary). • Decision-making should be made with the best interest of the Aboriginal peoples at heart.

17. Glossary of terms: Consultation • In short, it is the process in which the government must consider Aboriginal peoples’ interests and opinions regarding a certain question.

18. Characteristics of Consultation • The principle of consultation varies from the “discussion in good faith with the intention of substantially addressing the concerns of the aboriginal people to practice significantly deeper than mere consultation sometimes extending to the full consent of an aboriginal nation”[1]. • The level of consultation required will vary from one situation to another, going from the simple disclosure of information, notice and discussion to the modification of the project and/or accommodation of Aboriginal peoples. [1]J. Timothy S. McCabe, The Honour of the Crown and its Fiduciary Duties to the Aboriginal Peoples, (Markham: LexisNexis), 2008, p.111.

19. Accommodation • The principle of accommodation is “to adapt, harmonize, reconcile, to suit a special or different purpose, a settlement or a compromise”[1]. • A compromise is “an attempt to harmonize conflicting interests and move further down the path of reconciliation”.[2] [1]Ibid., p. 127. [2]Ibid., p. 127.

20. Importance of historical context • It is important for CAP National office and affiliates to have a solid understanding of the historical background of the duty to consult. • It is important to be fully informed of the latest developments and policies that have emerged in order to develop a future national policy position in the best interest of the CAP constituency.

21. Timeline of important cases regarding the Duty to consult Labrador Métis Nation 2007 Guérin 1984 Taku River 2004 Delgamuukw 1997 2005 Mikisew 2001 New Brunswick Aboriginal Peoples 2007 Native Council of Nova Scotia 1990 Sparrow 1763 Royal Proclamation 2004 Haida Nation Supreme Court of Canada CAP Affiliates

22. Historic Context leading to the obligation to consult • Royal Proclamation – 1763 • Prohibition of private purchases of Aboriginal lands; • Such lands could only be acquired by the Crown (after a public meeting had been held). • Protective goal of the Royal Proclamation: • Protection of the Aboriginal people from fraud and the abuses from settlers. • Creation of a trust-like relationship between the Crown and the Aboriginal people.

23. Historic Context leading to the obligation to consult (continued) • The Political Trust Doctrine: • This doctrine comes from a line of cases affirming that when the Crown is called a “trustee”, it is a trustee in the political sense. • Therefore, the Crown is responsible in the political arena but not in the Court. • The courts can only make the Crown liable for its legal obligations and not for its political ones. • St. Catherine’s Milling and Lumber Co. – The special treatment of Aboriginal people does not come from a legal obligation, but rather from a “sacred political” one.

24. Historic Context leading to the obligation to consult (continued) Guérin(Supreme Court of Canada - 1984): • Concept of FiduciaryDuty to replace the Political Trust Doctrine. • Indian’s interest in their land is a pre-existing legal right. • When an Indian band surrenders reserve land to the Crown, a fiduciary duty is created. • Not consulting with a band before taking a decision regarding reserve lands is a breach of the fiduciary duty.

25. Sparrow: Supreme Court of Canada – 1990 • Government has the responsibility to act in a fiduciary capacity with respect to Aboriginal people. • This comes from the historic power and responsibility of the Crown over the Aboriginal people • The Fiduciary Obligation of the government imposes some restraint on their exercise of sovereign power.

26. Delgamuukw: Supreme Court of Canada – 1997 • The Crown should always keep in mind the interests of Aboriginal people in developing territory policies. • Fiduciary duty changes depending on the context and facts of each situation. • With the Fiduciary duty comes the duty to consult. • To not consult = breach of Fiduciary duty. • Presence of breach? = Fair compensation is needed to keep the Honour and good faith of the Crown.

27. Haida Nation: Supreme Court of Canada – 2004 • Brought the duty to consult to a new extent. • This duty comes from the Honour of the Crown. • This duty arises when the Crown has knowledge of the possible existence of an Aboriginal right. • Affects both provincial and federal governments (no third parties). • Good faith on both sides is required. • Each case must be approached on a case-by-case basis (criteria further developed in this presentation).

28. Taku River: Supreme Court of Canada – 2004 • The principle of the Honour of the Crown must be given full effect in order to promote the process of reconciliation by s. 35(1) of the Constitution Act, 1982. (a full interpretation and not a narrow one). • The Crown needs to consult meaningfully and in good faith and make changes to its plans based on the information that emerged from the consultation. • There is no duty to agree, only a duty to consult.

29. Mikisew: Supreme Court of Canada – 2005 • The Honour of the Crown is inherent to every treaty and to the performance of every treaty obligation. • The Honour of the Crown imposes a obligation to disclose all pertinent information to the Aboriginal people in a timely way and to consider the views and opinions of the Aboriginal people and, wherever possible, integrate them into the proposed plan of action.

30. New Brunswick Aboriginal Peoples Council v. New Brunswick:New Brunswick Court of Queen’s Bench – 2001 • Ministry failed to provide exact location of boundaries and reasons for decision (hunting right). • New trial was ordered. • The Aboriginal group in question did not have sufficient evidence to prove that all of its members were of Aboriginal ancestry. • Had they been able to prove it, there would have been a duty to consult. • It must be taken into consideration that this case was decided prior to the Haida Nation case. The criteria hadn’t been established.

31. Lower Court decisions • The following cases were brought forth by CAP affiliates. • There is a change of position towards more flexibility post Haida Nation, Taku River and Mikisew.

32. Native Council of Nova Scotia v. Canada:Federal Court – 2007 • Decision on ministry of fisheriesto limit permitted lobster catch. • Applicant claims breach of fiduciary duty. • Not all of the members of the group were of proven Aboriginal ancestry, thus the duty to consult could not apply to the group. • Action dismissed.

33. Groundbreaking decision from a provincial Appeal Court • This case will have a direct impact on a future nation policy position taken by CAP. • Labrador Métis Nation v. Newfoundland & Labrador (Newfoundland and Labrador Court of Appeal – 2007)

34. Labrador Métis Nation v. Newfoundland & Labrador(Newfoundland and Labrador Court of Appeal – 2007) • LMN participated in a public environmental assessment process regarding the construction of a highway. • LMN requested documents on wetland and watercourse crossings, and adequate time to comment them. • The Minister of Transportation and Works and the Minister of Environment and Conservation denied the LMN request.

35. The court said… • The Crown had the duty to consult and accommodate the Métis. It had to provide LMN (Labrador Métis Nation) with the requested documents. • The duty to consult exists regardless of how the LMN identity their members (Inuit or Métis), the trial judge cannot define the identity of an aboriginal group. • When the identity is not clear, the Crown must do a dual-analysis (as Métis right and as an Inuit right in this case) to see if the duty exists. • In the present case, the evidence was not sufficient to prove an Inuit right, but it was to prove a Métis right.

36. Situating the case • On the Spectrum of Consultation, the present situation would be located on a low level of consultation because the proof of the right was weak and the impacts are small. • LMN only wanted to be provided with the proper information and the Crown should have allowed it.

37. Two important points from the LMN case: • An aboriginal organization can defend the rights of its members in court as long as the members are in general agreement (in this case, it was mentioned in the LMN constitution measures to protect the rights of the community could be taken). • Ex: Manitoba Métis Federation

38. Point number 2 • An aboriginal group does not need to ethnically identify its members definitively before the Crown’s duty to consult and accommodate arises. • “It is sufficient to assert a credible claim that member of a group belong to aboriginal people within section 35 of the 1982 Constitution.”

39. Impact of decision for future CAP policy position • CAP may follow the LMN decision and suggest the government relax the burden of proof in cases of duty to consult. • CAP national office and/or affiliates should not have to definitively ethnically identify its members in order for the Crown’s duty to consult to be triggered. • CAP would suggest that the government take the same policy position.

40. General policy questions regarding ConsultationCAP researchers based part of their study on specific questions provided by OFI. They have adapted the information collected in the review of the doctrine to fit to CAP’s specific situation. These findings reflect minimum standards already generally accepted.

41. What could consultation be from CAP’s perspective? • Consultation is the process in which the government must consider CAP’s interests and opinions regarding issues of concern to them. • It is an obligation of the Crown. • Both parties must participate in the process in good faith.

42. What are the generally accepted triggers to the duty to consult? • Two things must be established in order to trigger consultation (criteria): • The “at-first-sight” proof of the appearance of an aboriginal right or title (no need for the right to be entirely proven); • The project of action put forward by the government has impacts on the aboriginal right or title in question (the slightest of impact will suffice, no need for the impact to be irreparable). This will bring a spectrum of consultation.

43. Triggers that would be specific to CAP’s unique situation • As soon as the government is contemplating areas affecting CAP’s constituency, the duty is triggered.

44. How would CAP assess the strength of its own claim in a practical manner • By using the same “spectrum” developed by the courts and generally accepted by the doctrine as a pre-assessment tool to answer their own question as to whether there exists is a duty to consult. • CAP could then notify the government of the existence of a right warranting the duty to consult.

45. Spectrum of consultation A wide spectrum of consultation, depending on the proof of the right and the impacts. From LOW to HIGH levels of consultation Weak proof of the right + Small impacts LOW level of consultation Solid proof of the right + Irreparable impacts HIGH level of consultation, possibility of the need to accommodate

46. What is accommodation: Minimum standard for CAP & affiliates • To accommodate is to change a plan that has been established and that was deemed inacceptable by another party as to better fit the requirement of the said party. • Accommodation is required when the damages to the right are important and/or irreparable. • In order to determine the level of accommodation required a simple question must be answered: “What must the Crown do in order to maintain its Honour? ” • The consultation process is necessary in order to establish if accommodation is required, and if so, to what level.

47. When can accommodation be expected? • Once again depending on the importance of the impacts, accommodation might require more from the government. • Ex: if the project in question is the construction of a road, the government might bring modifications to the plan and change the location of the road. If the road cannot be relocated, the government will have to give financial compensation to the Aboriginal people. • Ex2: Another way to accommodate the Aboriginal People would be to give them some of the financial benefits of the project (parts of the revenues of the projects, or promise the hiring of Aboriginal people in the project).

48. Third Parties and CAP’s position • Although there is no duty to consult for third parties, the Crown may delegate procedural aspects of consultation, therefore possibly including the third parties to a project in the consultation process. • CAP may consider stating in a future policy position that third parties should participate more actively in the consultation since they often have a substantial investment of time and money in the projects being developed.

49. What is capacity and what are the policy implications for CAP? • Capacity is: the ability or power to do, experience, or understand something (Oxford dictionary) • For CAP, building capacity necessarily requires additional financing from the government to hire and train individuals in the many issues of concern to CAP’s constituents. These individuals would be permanent staff. • The goal of building capacity is to, eventually, be self-sufficient and self-governed.

50. What advantages could capacity bring to CAP? • Long-term capacity: • Provides beneficial tools for CAP for a long period of time (as opposed to the short-term capacity which provides the tools for one consultation process only) • Lightens the procedural steps leading to the actual consultation (because CAP will not have to ask the government for funds in order to finance each and every new consultation process.