Whole of Government Approach to the Duty to Consult

Transcription

1 4.1 Whole of Government Approach to the Duty to Consult Presentation to the Metro Vancouver Regional District Aboriginal Relations Committee May 4, 2017 Leigh Ogston, Senior Consultation Advisor, Consultation & Accommodation Unit Indigenous and Northern Affairs Canada

2 Context Reconciliation requires openness of spirit, endurance and great patience. But I believe that it is worth the effort. Chief Justice Beverly McLaughlin, Supreme Court of Canada, Defining Moment: The Canadian Constitution 2

3 The Relationship Government of Canada Priorities Building relationships with Indigenous peoples First Nations, Inuit and Métis is a priority for Canada Facilitating a nation-to-nation relationship with Indigenous peoples supports commitments to advance reconciliation and to respect the rights of Indigenous peoples No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, cooperation, and partnership. Found in all mandate letters from Canada s Prime Minister to his Ministers 3

4 Canada s Commitments The Government of Canada has made the following commitments in relation to Indigenous Peoples: Implementing the United Declaration on the Rights of Indigenous Peoples (UNDRIP), including aligning the duty to consult with free, prior and informed consent Implementing the recommendations of Canada s Truth and Reconciliation Commission Advancements in the negotiation and implementation of treaties and other agreements Implementing a Reconciliation Framework with Indigenous groups Consulting and engaging on environmental assessment and regulatory review processes Reviewing laws, policies and operational practices to ensure the Crown is fully meeting its consultation and accommodation obligations.

5 Commitments on United Nations Declaration on Indigenous Peoples (UNDRIP) In May 2016, the Government of Canada announced that it is a full supporter, without qualification, of the UNDRIP and committed to adopt and implement the Declaration in accordance with the Canadian Constitution Canada will be engaging with Indigenous groups on how to implement the principles of the Declaration and this engagement will include provinces and territories Canada s position on free, prior and informed consent includes: meaningful consultation with Indigenous Peoples on issues of concern to them with a goal of achieving consensus government, Indigenous communities and industry striving towards consensus 5

6 Section 35 of Canada s Constitution Act, 1982 Recognition of existing Aboriginal and treaty rights 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. The Honour of the Crown: Is a constitutional principle which overarching purpose is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty and gives rises to different duties in different circumstances. Helps define the Crown-Indigenous relationship it requires the Crown to act with honour and integrity in its dealings with Indigenous peoples. 6

7 The Duty to Consult The Government of Canada's duty to consult with Indigenous groups was affirmed by the Supreme Court of Canada through various court decisions The Supreme Court of Canada found that the Crown had a duty to consult if three elements exist: Contemplated Crown conduct (e.g. permitting and licensing for resource projects, land disposal, etc.) Potential or established Aboriginal or Treaty rights (e.g. hunting, fishing, trapping, other cultural practices related to land, water, air); and Potential adverse impact (e.g. limitations on Indigenous groups ability to exercise various rights and cultural practices, disruption in wildlife migration patterns and habitat, etc.) Where the duty arises, the Crown will be required to: Carry out a fair and reasonable process for consultations; and, Demonstrate reasonable efforts to respond and/or accommodate 7

8 Accommodation Accommodation seeks to harmonize, balance or reconcile (Aboriginal and other societal) interests and for all parties involved to reach an agreement that upholds the Honor of the Crown. The primary objective of accommodation is to avoid adverse impacts on Aboriginal and/or Treaty rights. When the impact cannot be avoided, the Crown must attempt to: Mitigate the impact Offset measures Compensate for any residual and/or remaining impact Government of Canada is required to carry out a fair and reasonable process, that is: Timely, efficient, responsive Transparent and predictable Accessible, flexible Good faith, respect, reciprocal responsibility Respectful of uniqueness of each community Includes accommodation where appropriate 8

9 Aboriginal Consultation in Canada Consultation is an important part of good governance, sound policy development and decision-making Good consultation results in strengthened relationships and partnerships with Aboriginal peoples and assists in reconciliation In Canada, consultation with Aboriginal peoples takes on a different dimension due to Constitutional and common law obligations Canada consults with Aboriginal groups for the following reasons: Good Governance/Policy Reasons To make informed and appropriate decisions To facilitate decision making on projects Improve and create working relations with all those affected Legal Reasons Statutory requirements Agreements / Contractual requirements S. 35 Common law requirements Honour of the Crown

10 The Whole of Government Approach INAC s Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (2011): provides high level overall guidance for federal officials (although each department or agency will develop their own specific policies, tools and practices according to their business lines to meet the duty to consult) provides advice such as choosing the lead department on a project and coordination of federal efforts. This provides a one-window approach Both the Canadian Environmental Assessment Agency (CEAA) and the Major Projects Management Office (MPMO) help with Canada s overall consultation process Supports ongoing collaboration with provinces and territories to share consultation information, and to coordinate processes where appropriate 10

11 OTHER TOOLS The Aboriginal and Treaty Rights Information Service (ATRIS) helps users identify who to consult by displaying the location of Indigenous communities and other information pertaining to their potential or established Aboriginal or treaty rights. The Modern Treaty Management Environment (MTME) is an on-line tool that allows federal officials to search and track their department or agency s specific treaty obligations. Tailored training and policy support for public servants in the application of the federal guidelines. Interdepartmental structures and regional networks for providing advice and information-sharing. 11

12 Principles and Directives for Consultation Canada uses the following guiding principles and consultation directives as the foundation for fulfilling the duty to consult: 1. Canada, in carrying out its activities, will respect potential or established Aboriginal or Treaty rights and related interests. 2. Departments will assess how their activities may adversely impact potential or established Aboriginal or Treaty rights and related interests. 3. Early consultations will assist Canada in seeking to identify and address Aboriginal concerns with a federal activity. 4. Consultation will be meaningful and will balance Aboriginal and other societal interests. You don t need to consult to engage but you need to engage in order to consult! 12

13 Principles and Directives (cont d) 5. Canada will ensure that a lead department is identified to carry out consultations where more than one department is involved in a federal activity. 6. Canada will use and rely upon existing consultation mechanisms, processes and expertise to coordinate decision making wherever possible. 7. Canada cannot delegate its obligation to consult to other parties but should seek to coordinate consultation activities with other partners. 8. Canada will act in accordance to its commitments to Aboriginal groups when carrying out consultation activities. The objective of consultation is to reach agreement between parties. This can strengthen relationships with Indigenous peoples and support broader reconciliation objectives. 13

14 Consultation process When the duty to consult is triggered, Canada will follow a four-phase process: Pre-consultation analysis and planning Identify Crown conduct, potential impacts on rights, who to consult, design process Consultation process Information exchange (rights, impacts), community representation, mitigation, communicate decision Accommodation Identify measures, concerns addressed Implementation, monitoring and follow-up Assess effectiveness of accommodation measures and adjust as necessary Scope of the duty to consult, and where appropriate, accommodate, is proportionate to: Strength of claim or Aboriginal and treaty rights assessment AND Seriousness of the Potential Adverse impact The depth of the duty is contextual and will depend on the facts in each circumstance. 14

15 Life Cycle of a Duty to Consult and Accommodate Identify Contemplated Crown Conduct Provide decision and rationale and follow-up Gather Information on potential rights and impacts Assess the adequacy of consultation process and accommodation measures Consultation process Assess depth of consultation Discuss outstanding concerns and any additional accommodation measures Be responsive and adjust conduct where possible Seek the perspectives of Indigenous groups 15

16 THANK YOU 16

17 Contact Information The Consultation and Accommodation Unit: Aboriginal and Treaty Rights Information System (ATRIS) Online version of The Updated Guidelines for Federal Officials to Fulfill the Duty to Consult: HQ/STAGING/texte-text/intgui_ _eng.pdf Contact: Leigh Ogston, Senior Negotiator, Consultation and Accommodation Unit, Indigenous and Northern Affairs Canada, 17

18 5.1 Information Sharing and Engagement with First Nations on Construction Projects Metro Vancouver: MARINO PIOMBINI, ANDREA WINKLER, AMRIT DHATT May 4, 2017 Presentation for Metro Vancouver Aboriginal Relations Committee

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26 QUESTIONS