THE RELATIONSHIP BETWEEN ABORIGINAL ENGAGEMENT AND SUSTAINABLE DEVELOPMENT

Transcription

1 THE RELATIONSHIP BETWEEN ABORIGINAL ENGAGEMENT AND SUSTAINABLE DEVELOPMENT Recent Developments in the Duty to Consult Mary Hatherly Alderon Aboriginal Relations Manager Newleef 2014

2 INTRODUCTION 10 years since the Supreme Court of Canada issued decision in Haida Nation v. BC recognizing a governmental duty to consult Aboriginal peoples In those 10 years, courts have been engaged in an elaboration of the operation of the duty to consult: the underlying rationale, procedures and substance Now exercise is to map out nuances of main elements: when is the duty triggered who can assert duty to whom and to what does the duty apply

3 INTRODUCTION Tendency to view fulfilment of Duty to Consult as an end in itself but more appropriate to see it as instrumental: Part of fostering of governmental-aboriginal reconciliation Mechanism to encourage Aboriginal participation in sustainable development and equitable resource distribution Relationship of the duty to consult to sustainable development illustrated by ongoing challenges by Aboriginal people legal and otherwise to proposed developments based on operation of duty to consult

4 SUSTAINABLE DEVELOPMENT What is sustainable development? Development that meets the needs of the present without compromising the ability of future generations to meet their own needs -- World Commission on Environment and Development, Our Common Future, 1987

5 SUSTAINABLE DEVELOPMENT Sustainable development meeting needs of future through balancing of social, economic and environmental objectives Growth must be both inclusive and environmentally sound to reduce poverty and build shared prosperity for today s population and to continue to meet the needs of future generations. Must be planned and efficient to deliver both immediate and long-term benefits

6 SUSTAINABLE DEVELOPMENT Three pillars of sustainable development economic growth, environmental stewardship, and social inclusion - World Bank

7 SUSTAINABLE DEVELOPMENT An integral aspect of federal policy Federal Sustainable Development Act, 2008: Sustainable development is based on ecologically efficient use of natural, social and economic resources and Precautionary principle key to achieving sustainable development Approach is to minimize impacts while maximizing efficient use of resources, goods and services

8 INDIGENOUS PEOPLES AND SUSTAINABLE DEVELOPMENT Relationship of indigenous peoples to sustainable development a key feature of international conventions and instruments Chapter 26, Agenda 21 (Rio Declaration on Environment and Development ILO Indigenous and Tribal Peoples Convention UN Declaration on Rights of Indigenous Peoples Convention on Biodiversity (1992) Vienna Declaration and Programme of Action (1993) Durban Declaration and Programme of Action (2001) In addition, policies and directives of EU, OAS and World Bank

9 INDIGENOUS PEOPLES AND SUSTAINABLE DEVELOPMENT Underlying theme of these instruments: Recognition of values, traditional knowledge and resource management practices in the promotion of sustainable development Recognition of need to protect indigenous peoples against environmental unsound or culturally inappropriate development Recognition of importance of renewable resources to cultural, economic and physical well-being Recognition of need to include indigenous perspective in sustainable development initiatives

10 CANADIAN CONTEXT Participation of Aboriginal peoples increasingly a feature of sustainable development in Canada Section 5(1)(c) of the Canadian Environmental Assessment Act, 2012 defines an environmental effect as including, with respect to Aboriginal peoples, any effect that may be caused to the environment on: (a) (b) (c) (d) socio-economic conditions, Physical and cultural heritage, The current use of land and resources for traditional purposes; or Any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. In assessing these effects, both direct and cumulative, Aboriginal traditional knowledge may be taken into account (Section 19(3)).

11 CANADIAN CONTEXT However, participation of Aboriginal peoples is not limited to EA Process Consideration of views of Aboriginal peoples is important at every phase of a development from planning and design through execution through closure as a result of its relationship to sustainable development e.g. See also recent enactments to mineral regimes in Ontario and Yukon including reference to Aboriginal involvement How to achieve this participation? Common mechanism is through the vehicle of the Crown duty to consult/accommodate

12 Rationale: the honour of the Crown consultation is a process of reconciliation between Crown and Aboriginal peoples Purpose of duty: DUTY TO CONSULT AND ACCOMMODATE THE BASICS Proven rights: To fill in any gaps (treaty) and protect established Aboriginal rights Asserted Aboriginal rights: protection from irreversible harm Trigger: Crown must consult where aware of the potential existence of Aboriginal rights which might be adversely affected by governmental action Result: take Aboriginal views into account and where necessary, mitigate or eliminate adverse effects through accommodation

13 OPERATION OF DUTY Spectrum of Consultation -- highly fact dependent on strength of claim and seriousness of potential impact Weak Moderate Strong Notice and Information Information + Consideration Deep Consultation Scope of duty provide information/consider views and accommodate adverse impacts through mitigation/access to benefits

14 OPERATION OF DUTY Consultation must be meaningful not just an opportunity to blow off steam Consequences of failure to consult: Injunctions against proponents preventing activities that had been permitted by Crown Requiring Crown to reconsider decisions Issuing orders to provide for consultation Result: delay, increased cost, erosion of social licence

15 EMERGING ISSUES A. Who should be consulted? Duty exists to protect the collective rights of Aboriginal peoples Holders of the rights are communities, not regional or tribal bodies Logical conclusion given the relationship between traditional knowledge and sustainable resource development No right to personal consultation However, in Behn v. Moulton Contracting, 2013, SCC indicated that in some circumstances, consultation with small groups of individuals (e.g. land users) may be appropriate Outstanding issues consultation with Metis

16 EMERGING ISSUES B. Who is the Crown? Crown bears duty while private sector proponents do not consultation is based on the honour of the Crown and only Crown that has ability to provide sufficient remedies to achieve meaningful consultation and accommodation Rio Tinto Alcan v. Carrier Sekani, 2010 SCC But important decisions are made by 3 rd parties which may affect asserted Aboriginal rights e.g. municipalities, conservation authorities To date, not liable to consult unless a Crown agent Neskonlith Indian Band v. Salmon Arm, 2012 BCCA but can expect this issue to be revisited Solution may be a functional analysis do these bodies exercise quasi-governmental powers?

17 EMERGING ISSUES C. Do standard public consultation processes satisfy the duty? Aboriginal peoples entitled to a distinct consultation process (Taku River Tlingit v. BC, 2004, SCC) which is open, transparent and timely and which provides for possible accommodation Existing statutory processes may be sufficient if meet this criteria and Aboriginal groups not entitled to unilaterally impose conditions on Crown s consultative process: Cook v British Columbia (Minister of Aboriginal Relations and Reconciliation), 2008 However, can expect questions relating to who authors the process and whether or not the structure of the process itself can be the subject of consultation

18 EMERGING ISSUES D. Can legislation/treaty negate duty to consult? Ross River Dena Council v. Government of Yukon, 2012: duty to consult when recording mineral claims on traditional territory even though legislation gave no discretion to officials to refuse to record claim. Duty to consult is upstream of other legal obligations officials not limited by statutory mandate in undertaking duty to consult and Crown consultation may be inadequate if officials lack authority to meaningfully consider/respond to concerns Chartrand v. District Manager, BC, 2013 mere existence of a treaty cannot be used to justify narrow scope of consultation consultation on all traditional territory and not just treaty lands

19 EMERGING ISSUES E. Is there a duty to consult re: legislation? See an obligation at international law Article 19 of UN Declaration on Rights of Indigenous Peoples Traditional view parliamentary sovereignty negated duty to consult Recent cases such as Ross River support view that legislative regime must allow for an appropriate level of consultation before Aboriginal claims are adversely affected Applies to both statute and orders-in-council

20 EMERGING ISSUES F. Does consultation include consultation on prior effects? Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, SCC 2010: consultation addresses novel impacts and is not intended to redress historic wrongs or revisit authorizations However, past impacts are not irrelevant: West Moberly First Nations v. BC, 2011 BCCA historic context is essential to a proper understanding of the potential impacts where there is a link between adverse effects and past wrongs In effect may stand for the proposition that consultation must address not only immediate and direct effects but also cumulative impacts in an appropriate case

21 EMERGING ISSUES G. Does consultation include consultation on future effects? Subject of duty to consult must be specific Crown proposal at issue: Halalt First Nation v. BC, 2012 No requirement to consider speculative effects However, increasing willingness to consider future impacts: West Moberly: impact of future mining was within the scope of duty to consult about impacts Sambaa K e Dene Band v. Duncan, FC 2012 Canada involved in land claims negotiations with 3 groups; signed framework agreement with one group and no planned consultation with other groups until after AIP. Duty to consult prior to reaching AIP. Non-derogation clause did not negate duty to consult on possible future effects of treaty

22 EMERGING ISSUES H. What are responsibilities of First Nations in consultative process? Reasonable consultation is a two-way street: mutual duty of good faith First Nations must express concerns in a meaningful and substantive way and identify specific issues in timely fashion Katlodeeche First Nation v. Canada, 2013, FC Refusal by First Nation to meaningfully participate in process will not prevent court from finding that duty to consult has been met: Louis v. British Columbia, 2013 If non-cooperation, raising lack of consultation may amount to abuse of process - Behn

23 FUTURE ISSUES 1. Limits of permissible delegation of procedural aspects: What is meant by procedural aspects? What is the legal status of various governmental policies and enactments dealing with consultation e.g Saskatchewan, Alberta, Ontario, NL? 2. Aboriginal Capacity and Process: Funding: Under what circumstances and whose responsibility? Process: Are formal arrangements required? Is consultation on process required? Who determines process? Responsibility of Aboriginal Groups: specificity of concerns, timing of response, raising new issues

24 FUTURE ISSUES 3. Are third parties subject to a duty to consult? Haida and subsequent cases have clearly stated no -- honour of Crown is implicated However, recent case involving IOC and Quebec Innu suggests that while no duty to consult attaches to third parties, those same third parties may be liable for failure to consult Courts have asserted authority to compel proponent and government to enter into consultation arrangements with First Nation Wahosig First Nation v. Ontario, 2012, OSC 4. Accommodation Uncharted ground limited case review Court not to mandate specific accommodation measures but may consider adequacy of accommodation as part of determining adequacy of consultation process West Moberly Supervisory role for courts?

25 CONCLUSION Duty to consult increasingly an important component of sustainable development Well established part of fabric of government and industry which enables development to proceed on lands that are subject to outstanding Aboriginal claims From Aboriginal perspective, consultation (whether with government or proponent) can be a tool to promote reconciliation, enhance participation in resource development and increase capacity From proponent s perspective, a mechanism to improve project design, identify and address adverse impacts and contribute to social acceptance of development