Aboriginal Consultation and Accommodation. Presentation to CANDO-Manitoba Learning Match 2014

Transcription

1 Aboriginal Consultation and Accommodation Presentation to CANDO-Manitoba Learning Match 2014 Presenter: Charles L Marcoux Consultation and Accommodation Unit Aboriginal Affairs and Northern Development Canada February 12, 2014

2 Background Review of Fundamental Principles Whole of Government Approach Overview 1) Guiding Principles and Consultation Directives 2) Tools 3) Strengthening Partnerships Protocols Memoranda of Understanding Regional Consultation Coordinators Contact Information 2

3 Background In , Supreme Court of Canada held that the Crown has a duty to consult and, where appropriate, accommodate Aboriginal groups when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights (Haida, Taku River et Mikisew Cree) In 2007, Canada announced its Action Plan on Aboriginal Consultation and Accommodation Interim Guidelines for Federal Officials to Fulfill the Duty to Consult (2008) Engagement with Aboriginal groups, provinces, territories and industry (2009) Inclusive consultation built on mutual respect, trust and informed decisions will contribute to better relations between the Crown and Aboriginal peoples Canada is moving forward following the Action Plan Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (2011) Strengthening Partnerships Additional tools for federal officials 3

4 Review of fundamental principles When does the duty arise? Legal Duty to Consult When the Crown has knowledge of potential or established Aboriginal and Treaty rights and contemplates conduct that may adversely affect those rights. Three elements are required: 1. Contemplated Crown conduct (e.g. initiative, activity, transaction, decision or project) 2. Potential or established Aboriginal and Treaty rights (e.g. hunting, fishing, trapping, other cultural practices related to land, water and air) ; and 3. Potential adverse impact (e.g. limitations on Aboriginal groups ability to exercise various rights and cultural practices). The objective is to promote the reconciliation of Aboriginal and other societal interests. 4

5 Canada s Whole of Government Approach 1) Guiding Principles and Consultation Directives: 1. Canada will respect recognized and affirmed Aboriginal and Treaty rights when carrying out its activities; 2. Departments will assess how their activities may adversely impact Aboriginal and Treaty rights; 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; 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 (e.g. treaties, agreements). 5

6 Canada s Whole of Government Approach 2) Development of Tools and Training to Assist Federal Officials in Effective and Efficient Decision-Making Consultation Information Service/ATRIS Aboriginal Treaty Rights Information System (ATRIS), provides officials with access to electronic information on potential and established Aboriginal and Treaty rights. Consultation Information Service, was created to act as a single window for providing baseline information relevant for consultations to external stakeholders, and advisory input for federal departments and agencies with on the ground responsibilities for consultation. Includes Regional Subject Experts. Training for Federal Officials and Information-Sharing Continue to train federal officials on the Updated Guidelines in their efforts to address the duty to consult Expanding sessions beyond federal officials under MOUs with provinces, (e.g. joint training with province of Nova Scotia) 6

7 3) Strengthening Partnerships Whole of Government Approach Tripartite consultation protocols and agreements Consultation protocols and agreements are developed by Canada, province/territory and an Aboriginal group, and are an effective tool for establishing a consultation process between parties in advance of specific consultations taking place. They provide clarity for all parties involved and help to ensure that Section 35 rights are addressed in a consistent and fair manner. Current consultation protocols and agreements include: Algonquins of Ontario-Ontario-Canada Consultation Protocol (2009) Mi kmaq-nova Scotia-Canada Terms of Reference (2010) Mi kmaq-prince Edward Island-Canada Consultation Agreement (2012) Mi gmaq of Gaspé-Québec-Canada Tripartite Agreement on Consultation and Accommodation (2012) Bilateral Memoranda of Understanding Memoranda of Understanding (MOUs) between Canada and a province or territory have become an effective method of strengthening partnerships, sharing information, coordinating on consultation activities, and establishing clear expectations and processes in consultation. The Canada-Nova Scotia MOU on consultation was concluded in October Discussions are underway in other jurisdictions towards similar agreements. 7

8 3) Strengthening Partnerships (cont d) Whole of Government Approach Regional Coordinators (RCCs) are in place in all regions south of 60. Under AANDC s mandate, RCCs have the responsibility to engage other federal departments/agencies, provincial/territorial governments, Aboriginal groups and industry to: Facilitate partnerships and relationships between all stakeholders; Encourage collaboration and improve efficiency of consultation and accommodation processess; Support coordination mechanisms; and, Foster ongoing information exchange between all parties. RCCs do not often participate in a specific consultation process, they liaise with the parties involved to support and coordinate effective consultations. A key focal point for RCCs is the development of partnerships, including the development of consultation protocols/arrangements with Aboriginal groups. 8

9 What is a Consultation Protocol? Consultation Protocols are agreements that outline a consultation process. They are a proactive measures that set out a clear and efficient process in advance of specific consultations taking place. Consultation protocols should outline: Who is to be involved by naming Parties and by specifying when others may be included (i.e. proponents, other groups, other Crowns). What is to be discussed may vary, but focuses on how contemplated Crown conduct may adversely impact potential or established s. 35 rights and interests. When the agreement will be initiated, any particular timelines or events (i.e. events within a regulatory/ approval process) and termination clauses. How the consultations will be carried out. 9

10 Why use a Consultation Protocol? Contributes to more effective, timely and meaningful consultations processes by providing clarity, coordination and consolidation: Creates an established process rather than sorting out processes on a case by case basis. Provides tools for communities to have their s.35 rights addressed in a consistent and fair manner. Reasonable timelines and phases of consultation. Federal and provincial coordination of consultation activities. Reduce overlap and duplication for communities by grouping consultation activities. 10

11 How Consultation Protocols May Assist? Identifies a single point of contact (consultation office) for Aboriginal groups, which eliminates uncertainty when determining who to consult. Improved consultation capacity by providing capacity funding to sustain a consultation office. Results in an improved relationship between the parties and enhances the predictability of consultation and regulatory processes. Advances reconciliation of Aboriginal and other societal interests. 11

12 Criteria for entering into a protocol Significant federal consultation footprint involving several departments and agencies : i.e. areas of intense resource development; federal land holdings. There may be circumstances where a protocol with a single group is warranted, however aggregation is preferable as a means to move beyond the current approach. Provincial/territorial interest in participating. Applies to a particular geographic area. Community readiness to participate in protocol discussions. 12

13 Contact Information For more information on Aboriginal consultation and accommodation: AADNC Website on Aboriginal Consultation and Accommodation Updated Guidelines for Federal Officials Regional Consultation Coordinator Charles Marcoux, Manitoba/Saskatchewan Regions, (204) Consultation Information Service 13