Lecture 6- FN Flashcards
What is the history behind the crown’s duty to consult aboriginal interests?
- Constitution Act, 1982, section 35(1) affirms aboriginal title exists even w/o treaty
- Royal proclaimation 1763: only crown could acquire land from first nations through treaties (Indian Magna Carta)
- Constitution Act, Section 25: Nothing can terminate/diminish Aboriginal rights outlined in proclamation, However BC hadnt been settled yet when proclamation was issued.
What is good faith consultation?
crown must inform Aboriginal peoples of actions potential impact on treaty rights; must approach with intent of substantially addresing concerns (both established and asserted right not yet proven)
Aboriginal groups do not have veto power (reciprocal good faith consultation
3 tests for if the crown breached duty to consult
- is there a duty to consult?- crown has knowledge of potential existence of aboriginal right. title, contemplates conduct that might adversely affect it
- Scope and content of duty? - strength of claim (Prima facie case on asserted but unproven rights) and seriousness of potential effect
- Was duty fulfilled? -crown made reasonable efforts to inform and consult
Fiduciary obligation/duty
Legal obligation of one party to act in best interest with another (Obligated party = fiduciary / entrusted ith care of money/property)
Delgamuukw
1997-supreme court ruled that aboriginal tigtle is right to the land itself, not just hunting/fishing/gathering
- Aboriginal title was never extinguished in BC
- When dealing with crown land, government must consult with first nations
Haida
Transferof ownership of Tree Farm Licence in QCI- how much consultation was required w/ haida FN when Crown made decision under forest Act
- crown must consult w/ FN if it knows of an asserted aboriginal right
- Det. consultations nature and extent based on claim’s strength, extent of adverse effects on rights
- FN consultation is gov’t responsibility but can assign procedural aspects to proponents
Taku
Taku river Tlingit FN challenged process culminatin in responsible minister’s decision to issue EA certificate; supreme court concluded that EAO fulfilled corwns obligations to consult and accomodate FN
What principles guide EAO decision makers when consulting FN
- Early consultation
- Share all relevant info
- Clearly explain proposals and Gov’t decisions
- Ensure opportunities for FN feedback
- Genuinely consider concerns, address them
- Be respectful, open, reasonable, responsive
11 features are of respect in FN consult process
- Early involvement
- Comprehensiveness (relavent studies, incorporating community and TEKW, ID impacted interests, prevention, avoidance, mitigation)
- Flexibility
- Inclusiveness
- Accomodation
- Provision of info
- Follow-up
- Protocol agreements
- Ongoing consultation
- Recognition of need for FN agreement
- informed decision making
Define traditional knowledge and how it can be brought into EA process
body of knowledge accumulated over time by people living in closer contact w/ natural environment, that continues into the present
- including comments on project related docs
- Traditional Use studies, archaeological overview, impact assessments
- Wildlife, veg, socioeconomic studies
What may FN request funding for? who supplies it?
- Development in understanding EA
- Participation in meetings (travel)
- CEremonial costs
- Professional assistance to enhance participation
- Internal consultation and decision making
- Discussions/ negotiation w.r.t. economic benefit agreements
- $ supplied by EAO, proponents, fed gov & CEAA
How are aboriginal people now poised to shape and capitalize on wealth-producing possibilities of resource extraction
- Mining co’s have duty to consult
- Canada said “yes” to many demands
- internal development w/in communities- corporations, joint venture co’s w/ resource firms, locally and community-owned businesses, consulting ops
- Companies partnering w/ FN good PR, good business (faster progress, trainable local workforce, improved community relationships, environmental collaboration, local economic impact.)
What are some examples of Confidential infor FN can submit to EA process? under what circumstances can info be submitted confidentially?
burial sites, petroglyphs, high yield forage areas
-avoid public disclosure, no specific location
What are the proponent responsible (and not responsible) for in FN consultations during EA process
Yes: Knowing impacted treaty area
-Avoidance/reduction measures
No: Traditional use studies (but may be mutually beneficial)
- legal determinations of whether crown decisions infringe on terms
- Interpreting treat (guidance provided by EAO)
