THE GENESIS OF ABORIGINAL

RIGHTS AND THE DUTY TO

CONSULT UBC – Institute for Resources, Environment & Sustainability Date: September 16th, 2014 Presented by: Rosanne M. Kyle 604.687.0549, ext. 101 rkyle@jfklaw.ca

Aboriginal Rights in Canada

“Aboriginal rights are simply the rights to which native people

are entitled because they are the original peoples of Canada.”

Thomas Berger’s Forward in

Nisga’a – People of the Nass Valley

The Recognition of Aboriginal Rights in

Canadian Legal History

• Royal Proclamation of 1763

• implicitly recognized aboriginal interests in lands in North

America

• protected aboriginal possession and use of lands reserved to First

Nations

The Royal Proclamation

• Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty unless: • they were incompatible with the Crown’s assertion of

sovereignty;

• they were surrendered voluntarily via the treaty process; or

• the government extinguished them. Mitchell v. Minister of National Revenue, [2001] 3

C.N.L.R. 122 (SCC)

The Recognition of Aboriginal Title

1888:

Aboriginal title is a “burden” on the Crown.

St. Catherine’s Milling & Lumber v. R.(1888), 14 A.C. 46 (J.C.P.C.)

The Treaty-Making Process

• Royal Proclamation mandated treaties prior to settlement of

lands

• Lack of historical treaties in British Columbia -exceptions:

“Douglas Treaties” (Vancouver Island); Treaty 8 (northeastern

B.C.)

Assertion of Aboriginal Title in B.C.

• 1880s: First Nation demands to enter into treaties

• 1920s: formation of Allied Tribes of British Columbia to advance claims

• 1992: B.C. Treaty Commission established

• 1999: Nisga’a Treaty

Aboriginal Title as an “Inherent” Right

1973:

“… the fact is that when the settlers came, the Indians were

there, organized in societies and occupying the land as their

forefathers had done for centuries. This is what Indian title

means ….” Calder v. Attorney General of B.C. (1973), 34 D.L.R. (3d) 145 (SCC)

Section 35 of the Constitution

Act

1982:

“The existing aboriginal and treaty rights of the aboriginal

peoples of Canada are hereby recognized and affirmed.”

The Meaning of Section 35

“The constitutional recognition afforded by … [s. 35] … gives a measure of control over government conduct and a strong check on legislative power. While it does not promise immunity from government regulation in a society that, in the twentieth century, is more complex, independent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise.”

R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (SCC)

The Test for Aboriginal Rights

• the nature of the aboriginal rights claim must be delineated in terms of the particular practice, tradition or custom under which it is being claimed; and

• the claimed aboriginal right must have been an integral part of the First Nation’s distinctive culture prior to contact

R. v. Van der Peet, [1996] 2 S.C.R. 507

The Test for Aboriginal Title

• claimed land must have been occupied by the

First Nation at sovereignty;

• if present occupation is being relied upon as

proof of occupation pre-sovereignty, First Nation

must show continuity; and

• occupation at the time of sovereignty must have

been exclusive R. v. Delgamuukw, [1997] 3 S.C.R.1010

Content of Aboriginal Title

• aboriginal title encompasses the following rights:

• exclusive use and occupation of the lands

• right to choose to what uses the lands can be put

• inescapable economic component R. v. Delgamuukw, [1997] 3 S.C.R.1010

Tsilhqot’in (William) v. British

Columbia, 2012 BCCA 285 • The B.C. Court of Appeal held that Aboriginal title can only

exist over intensively occupied small areas such as village

sites, cultivated or enclosed fields, particular rocks, salt licks,

or buffalo jumps.

• The Court’s definition of Aboriginal title does not protect a

land based culture. The Court believes that practice based

Aboriginal rights are the primary way to ensure cultural

security and protect traditional lifestyles.

The Tsilhqot’in Case

• The Aboriginal rights found by the trial judge were

confirmed. The Tsilhqot’in have the right to capture and use

horses, to hunt and trap in the claim area, and to trade in skins

and pelts to secure a moderate livelihood. The Court also

found that the Province had unjustifiably infringed those rights

in its management of forestry.

• In the words of the Court, an approach to Aboriginal title that

goes beyond small spots is “antithetical to reconciliation.”

Infringement

• if an existing aboriginal right is interfered with, there will be a

prima facie infringement of s. 35 of the Constitution Act

• onus is on First Nation claimant to prove infringement

R. v. Sparrow, (1990), 70 D.L.R. (4th) 385 (SCC)

Justifiable Infringements of Rights

“The government is required to bear the burden of justifying

any legislation that has some negative effect on any aboriginal

right protected under s. 35(1).” R. v. Sparrow, (1990), 70 D.L.R. (4th) 385 (SCC)

Justification of Infringement

• infringement must be in furtherance of a legislative objective

that is compelling and substantial; and

• infringement must be consistent with the special fiduciary

relationship between the Crown and aboriginal peoples R. v. Delgamuukw, [1997] 3 S.C.R.1010

Consultation – Part of the Justification Test

“The aboriginal peoples, with their history of conservation-

consciousness and interdependence with natural resources,

would surely be expected, at the least, to be informed

regarding the determination of an appropriate scheme for the

regulation of the fisheries.”

R. v. Sparrow (1990), 70 D.L.R. (4th) 385 (SCC)

Reasonable Efforts to “Inform and Consent”

“… the need for the dissemination of information and a request

for consultations cannot simply be denied. So long as every

reasonable effort is made to inform and to consult, such efforts

would suffice to meet the justification requirement.” R. v. Nikal, [1996] 1 S.C.R. 1013

Accommodation –

Part of the Justification Test

-whether the government accommodated the aboriginal right is

relevant to determining whether an infringement is justified R. v. Gladstone, [1996] 2 S.C.R. 723

Reconciliation –

Part of the Justification Test

“… the aboriginal rights recognized and affirmed by s. 35(1)

must be directed towards the reconciliation of the pre-existence

of aboriginal societies with the sovereignty of the Crown.” R. v. Van der Peet, [1996] 2 S.C.R. 507

Further Expansion and Definition of the Duty to

Consult

“There is always a duty of consultation. Whether the

aboriginal group has been consulted is relevant to determining

whether the infringement of aboriginal title is justified….” R. v. Delgamuukw, [1997] 3 S.C.R.1010

Content of the Duty to Consult

“The nature and scope of the duty of consultation will vary

with the circumstances …. consultation must be in good faith,

and with the intention of substantially addressing the concerns

of the aboriginal peoples whose lands are at issue.” R. v. Delgamuukw, [1997] 3 S.C.R. 1010

Existence of a Duty to Consult Prior to Proof of

Rights

B.C. Court of Appeal decisions in 2002:

• Taku River Tlingit First Nation v. B.C.

• Haida Nation v. B.C.

Supreme Court of Canada’s Decisions in Haida

and Taku River Tlingit

• November 2004:

• SCC affirmed the B.C. Court of Appeal’s decisions that a duty to

consult does arise prior to proof of title

Haida Nation and Taku River Tlingit

• Government has a duty to consult with and, where appropriate,

accommodate aboriginals prior to proof of aboriginal rights or

title where it:

• has real or constructive knowledge of the potential existence of the

rights or title; and

• contemplates conduct that might adversely affect the rights or title.

The Duty to Consult

• The scope of the duty is proportionate to:

• the strength of the aboriginal rights or title claim being asserted,

and

• the seriousness of the potential impact of the activity to be

undertaken on the aboriginal interests.

The Duty to Consult

• governments must carry out meaningful consultation in good faith

• the duty to consult does not include a duty to reach agreement

• First Nations must also show good faith in the consultation process

• consultation does not give First Nations a veto power

The Duty to Accommodate

• a duty to accommodate arises when the consultation process

reveals a strong aboriginal rights or title claim and a likelihood

of adverse impact from the proposed activity

• accommodation requires governments to reasonably balance

aboriginal interests with other societal interests

Musqueam Indian Band v. B.C.

2005:

Musqueam Indian Band v. British Columbia (Minister of

Sustainable Resource Management), B.C.C.A.

-sale of golf course to U.B.C.

-land claimed by Musqueam

Musqueam Indian Band v. B.C.

• “spectrum” of consultation – depends on circumstances

• timing of consultation critical

• degree of interim accommodation required will vary

Canada v. Mikisew Cree First Nation

2005:

Canada v. Mikisew Cree First Nation, SCC

-Canada has a duty to consult with First Nations even though

lands surrendered pursuant to treaty

Third Parties and the Duty to Consult

• in Haida, SCC found that industry has no duty to consult –

government cannot delegate the duty to third parties

• third parties, such as businesses and municipalities, still have a

lot at stake in relation to consultation

Why Third Parties Should Care about the

Adequacy of Consultation

• third parties can be impacted by a lack of consultation/disputes over level of consultation

• avoidance of litigation, including injunction applications which can delay projects and add significantly to the costs of projects

• avoidance of blockades and acts of civil disobedience

Case in Point

West Moberly First Nations v. B.C. (Chief Inspector of Mines),

2011 BCCA 247

-can’t restrict consultation to the mandate of the

statutory decision-maker

-have to consider cumulative impacts, including from

historical activities

Court stayed exploratory work authorizations until consultation

completed

Third Parties and Consultation

• third party participation often needed to provide adequate information to First Nations

• third parties are often in the best position to address and accommodate First Nation issues

• Regulatory bodies typically require project proponents to consult before government authorizations will be issued (eg) EAs

Relationship Building

• Good relationships with aboriginal “neighbours” can result in

“win-win” situations:

• local employment pool which can decrease labour costs,

particularly for remote areas

• local services available for industry (eg) catering, accommodation,

transportation, etc.

Implications to Government

• government needs to consider whether a duty to

consult arises before granting approval of a

project

• timing of consultation critical – government

should not enter into binding agreements until

any obligation to consult is considered and, if

necessary, dealt with

Implications to Industry

• project proponents need to factor in consultation issues when assessing financing and timing requirements

• project proponents should try to foster good relationships with affected First Nations before consultation process formally begins

• proponents can consider entering into Impact Benefit Agreements with affected First Nations to “accommodate” First Nations

• proponents should monitor Crown consultation processes

The Reality

• “Let us face it, we are all here to stay.”

• Chief Justice Lamer, Delgamuukw