NWT Municipalities: Understanding the Duty to Consult Aboriginal Peoples

Transcription

1 NWT Municipalities: Understanding the Duty to Consult Aboriginal Peoples Toby Kruger Keith Sulzer (867) BUSINESS LAW

2 Overview 1.Source of the Duty: Honour of the Crown 2.Nature of the Duty: Constitution/Common Law 3.Trigger for the Duty: Crown conduct that might adversely affect an Aboriginal right 4.Scope and Content: A Spectrum 5.Practical Tips

3 1. Source What is the source of Aboriginal Consultation? The government s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. (Haida Nation at para. 16) In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. (Haida Nation at para. 17)

4 2. Legal Nature What is the legal nature of the Crown s duty to consult Aboriginal peoples? Both a common law and constitutional obligation on the Crown Common law duty arises from honour of Crown Constitutional duty arises from section 35 of the Constitution Act, 1982: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

5 3. Trigger When is the Crown s duty to consult triggered? When the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it (Haida Nation, para. 35) Three part test: 1. Crown has knowledge of a potential Aboriginal claim or right; 2. Crown contemplates conduct; and 3. the conduct contemplated has the potential to adversely affect an Aboriginal claim or right.

6 3. Trigger Does the Crown include Municipalities? - BCCA, SKQB, ONSC say NO But Clyde River and Chippewa of the Thames if a tribunal is the final decision maker of delegated authority, then the tribunal s decision is Crown Conduct that triggers the duty same reasoning could apply to Municipalities When in doubt consult!

7 3. Trigger (NWT Treaties and Land Claims) All 3 contexts (non-treaty, historic and modern)

8 3. Trigger (Municipalities and Land Claims) Acquisition or use of Sahtu/Gwich in/inuvialuit owned municipal lands for pubic purpose Sahtu s. 23.3, Gwich in s Requires negotiation and potentially arbitration, or involvement of territorial/federal government in the case of expropriation Inuvialuit s. 7(61)-(63) Requires negotiation, and potentially arbitration Requirement for municipality to consider other non-inuvialuit properties first Changes to municipal boundaries Sahtu s. 23.5, Gwich in s Negotiation between GNWT and designated land claim organizations Land claims provide some guidance on factors considered Municipalities not directly involved, but needs of local government taken into account Inuvialuit s. 7(61-63) Same as Inuvialuit section above Only arises when Inuvialuit lands are in question Tłi chǫ Agreement s. 8.7 Very different context! Tłi chǫ community government applies to Minister for expansion Needs consent from Tłi chǫ Government If expansion includes Tłi chǫ lands, Tłi chǫ community government must negotiate with Tłi chǫ Government Land use planning within municipal boundaries Sahtu Agreement s , Gwich in Agreement s Land use planning within local government boundaries shall be the responsibility of the local or territorial government. The local or territorial government shall consult with the relevant [Sahtu/Gwich in] community in the development of a community plan.

9 4. Scope and Content Varies with the circumstances: Scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. (Haida Nation, para. 39)

10 4. Scope and Content Spectrum of Consultation: Low Weak case and/or minimal negative effects: notice disclosure of information discussion of any issues raised High Strong case and/or substantial negative effects: the opportunity to make submissions formal participation in the decision-making process written reasons to show how concerns were considered and their impacts on the decision accommodation of interests

11 5. Practical Tips For municipalities: Determine what the land claim in your area says Potential to Adversely Affect Is there going to be a physical effect on land or resources arising from the currently contemplated conduct? Development, change in water levels, extraction of minerals, taking up of land, air and noise disturbances, etc. Are there going to be structural changes to the resource management that may lead to further decisions that will have a physical effect on the land and resources? Eventual operational changes? Is the Crown going to have less control over the resource once the transaction is complete? Is there a change in the identity of the controlling mind of the company that manages the resource?

12 5. Practical Tips (for Aboriginal groups) Recall that duty is triggered: When the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title Inform all levels of the Crown of: new rights or title claims important sites eg. burial sites, trap lines, ceremonial sites, significant harvesting areas

13 5. Practical Tips (for Aboriginal groups) When a project is proposed or being considered: Immediately let all involved levels of government know of any potentially affected rights. To the extent possible, participate in any form of consultation made available. If you can t afford to participate, say so. You can still take a firm stance, but courts have held it against Aboriginal groups if they choose not to participate

14 Thanks for Listening Presented by Toby Kruger Keith Sulzer (867) SOLELY FOR INFORMATIONAL PURPOSES, NO LEGAL ADVICE SOUGHT OR GIVEN. 2017, Lawson Lundell LLP. All Rights Reserved. Lawson Lundell LLP is a British Columbia Limited Liability Partnership