|
A message from the 'bceniplc' discussion list
Consultation
Guidelines
September 1998
C O N T E N T S
- CONSULTATION ON ABORIGINAL RIGHTS AND TITLE
- PURPOSE
- BACKGROUND
- ABORIGINAL RIGHTS
- The Sparrow Decision
- The Van der Peet Decision
- CONSULTATION PRACTICES TO DATE FOR ABORIGINAL RIGHTS
- THE NEW CONSIDERATION - ABORIGINAL TITLE
- Background - The Decision
- Legal Implications
- Duty of Consultation
- How Does Aboriginal Title Relate to Aboriginal Rights?
- CONSIDERATIONS FOR CONSULTATION - ABORIGINAL TITLE
- INTRODUCTION
- SCOPE
- OPERATIONAL GUIDELINES
- OPERATIONAL IMPLEMENTATION
- Pre-Consultation Assessment
- ASSESSMENT FACTORS
- Nature of Tenure, Permit, Activity, Decision Nature of Land Additional Factors
- CONSULTATION PROCESS
- Step 1- Initiate consultation
- Step 2 - Determine if the activity will infringe or interfere with aboriginal rights/title
- Step 3 - Determine if the infringement can be justified
- Step 4 - Look for opportunities to accommodate aboriginal interests, or negotiate a resolution
APPENDICES
Flow Chart
- Crown Land Activities and Aboriginal Rights Policy Framework
- Consultation Principles
-------------------------------------------------------------------------------
I. CONSULTATION ON ABORIGINAL RIGHTS AND TITLE
A. PURPOSE
This document will describe the need to consult with First Nations on aboriginal rights and title and will outline in detail the method to consider the potential of aboriginal title in decision making processes.
B. BACKGROUND
In 1982, aboriginal rights were recognized and affirmed in Section 35(1) of the Constitution Act, 1982. Recent court decisions have clarified the nature of aboriginal rights and, as a consequence redefined the legal relationship between the Government of British Columbia and aboriginal peoples. In short, government activities cannot infringe aboriginal rights unless there is proper justification.
In addition, the Supreme Court of Canada recently rendered the Delgamuukw decision. The decision discussed aboriginal title, adding new factors which must be taken into consideration during consultation with aboriginal groups.
C. ABORIGINAL RIGHTS
The Sparrow Decision (1990, Supreme Court of Canada) The Court provided the following framework, known as the "Sparrow test", for assessing whether an action of government (such as a regulation) could conflict with an aboriginal right and does interfere with that right, and if so, whether the interference is justifiable.
The Sparrow test is as follows:
1. Is there an existing aboriginal right?
2. Does the proposed government activity interfere with the right because it:
(a) is unreasonable;
(b) imposes undue hardship; or
(c) prevents the holder of the right the preferred means of exercising it?
3. If the right is interfered with, is the interference justified because:
(a) there is a valid legislative objective, such as conservation;
(b) after conservation measures are taken, priority is given to First Nations;
(c) there is as little infringement as possible;
(d) in the case of expropriation there is fair compensation; and
(e) there has been consultation?
According to Sparrow, any proposed government regulations that infringe aboriginal rights must be constitutionally justified. The Court further ruled:
(a) aboriginal rights are capable of being exercised in a modern manner;
(b) governments may infringe existing aboriginal rights only for a compelling and substantial objective such as the conservation and management of resources among others; and
(c) after conservation goals are met, aboriginal people must be given priority to fish for food over other user groups.
The Van der Peet Decision (1996, Supreme Court of Canada)
Based on the Van der Peet decision, the following factors must be considered in determining whether an aboriginal practice constitutes an aboriginal right:
To constitute an aboriginal right, a practice, tradition or custom must be integral to the distinctive culture of an aboriginal society; that is, it must be a central and significant part of the society's distinctive culture.
The practice, tradition or custom must have been integral prior to contact with European society.
Aspects of aboriginal society that are true of every society such as eating to survive do not qualify as aboriginal rights, nor do activities that are incidental or occasional to the aboriginal society.
The existence of an aboriginal right will depend entirely on the traditions, customs and practices of the particular aboriginal community claiming the right. The scope and content of aboriginal rights must be determined on a case-by-case basis.
Aboriginal rights may include the right to use land to hunt, fish and gather wood, berries and other fruits and materials for sustenance, social, spiritual and ceremonial purposes. Trading in a resource outside the aboriginal society in a manner akin to "commercial" activity may also constitute an aboriginal right in some circumstances. In R. v. Gladstone, the Supreme Court of Canada held that the Heiltsuk had an aboriginal right to trade commercially in herring spawn on kelp.
D. CONSULTATION PRACTICES TO DATE FOR ABORIGINAL RIGHTS
In order to ensure that the rights of aboriginal groups are considered and protected, Provincial organizations consult with First Nations on the potential existence of aboriginal rights.
Provincial ministries and agencies have implemented a strategy to consult with aboriginal groups to gather information on aboriginal considerations related to land and resource activities. While the methods of consultation often vary from agency to agency, they are all guided by the terms of the Province's Crown Lands Activities and Aboriginal Rights Policy Framework (attached in Appendix A) that spells out the essential principles of consultation with First Nations. This Policy was amended in 1997 to reflect recent court decisions.
Generally, provincial organizations consult using a number of tools that build on working relationships between the Province and aboriginal groups.
Many agencies have drafted their own internal procedures to formalize their plans to address aboriginal issues within the context of their operations.
Methods of consultation can include:
meetings and correspondence with aboriginal groups; exchanges of information related to proposed activities; the development and negotiation of consultation protocols; site visits to explain the nature of proposed activities in relation to potential aboriginal rights;
carrying out traditional use studies; and participation in local advisory bodies.
These methods serve a common purpose: to incorporate the consideration of aboriginal rights within the structure of statutory decision making.
E. THE NEW CONSIDERATION - ABORIGINAL TITLE
In 1997, criteria for aboriginal title were set out in a decision by the Supreme Court of Canada. This decision, known as Delgamuukw, sets out principles with respect to aboriginal title and provides some guidance to governments in considering aboriginal title within statutory decision making processes.
The remainder of this document discusses aboriginal title, and describes how this consideration is to be included within existing consultation processes.
Background - The Decision
The Court of Appeal decision on Delgamuukw was appealed to the Supreme Court of Canada by hereditary chiefs of the Gitxsan and Wet'suwet'en people and the provincial government. A decision was rendered on December 11, 1997.
In its decision, the Supreme Court discussed legal considerations relating to aboriginal title including its source, content, proof and inherent limitations. No determination was made with respect to the specific claims of the Gitxsan and Wet'suwet'en to aboriginal title and self-government.
No factual findings regarding the existence of aboriginal title in British Columbia were made. These were left for a new trial.
Legal Implications - Supreme Court of Canada Decision
Several key points flowed from this decision. They are:
Principles respecting Aboriginal Title:
It is a right to exclusive use and occupation of land.
It is a proprietary interest, but it is held communally, it cannot be alienated other than to the federal government, and has certain inherent limitations to ensure its continued existence unless it is surrendered to the Crown.
It is a particular kind of aboriginal right, being a right to the land itself.
It includes the right to choose to what uses land can be put (not restricted to traditional uses), and includes exploitation of mineral rights.
It is subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain the kinds of activity which made it aboriginal title land in the first place.
Lands held pursuant to aboriginal title have an inescapable economic component.
Criteria to Prove Aboriginal Title:
Onus of proof lies with aboriginal groups.
The land must have been occupied prior to sovereignty (1846).
There must be a continuity between present and pre-sovereignty occupation if present occupation is relied on as proof of pre-sovereignty occupation.
Occupation must have been exclusive at sovereignty; although there can be shared exclusivity resulting in joint title.
Infringement of Aboriginal Title:
Both the federal and provincial governments can infringe aboriginal title in furtherance of a compelling and substantial legislative objective and if consistent with the special fiduciary relationship between the Crown and aboriginal people.
The Crown may justifiably infringe aboriginal title for a variety of objectives including land settlement, economic development and environmental protection provided that it can meet the justification principles established in Delgamuukw.
Where aboriginal title has been proven to exist, compensation may be payable as part of the justification for infringement.
Consultation:
There is a duty to consult with aboriginal people when the Crown by its actions will infringe aboriginal title.
The scope of the duty of consultation will vary with the circumstances. In most cases the duty will be significantly deeper than mere consultation, and in some cases may require consent.
Duty of Consultation
Provincial agencies have a duty to consult with aboriginal people when the Crown by its actions will infringe aboriginal title. The consultation required will vary with the contemplated use of the land, ranging from discussions carried out in good faith to circumstances which may require the full consent of the First Nation.
How Does Aboriginal Title Relate to Aboriginal Rights?
The Supreme Court of Canada provided a model to illustrate how aboriginal title relates to aboriginal rights. In this model, the Supreme Court stated that there is a spectrum of aboriginal rights. Different forms of aboriginal rights lie at different points on the spectrum, according to their degree of connection with the land.
At one end of the spectrum, there are aboriginal practices and customs that are an integral part of an aboriginal culture. These are not necessarily tied to the land, but are practices which are nonetheless protected as an aboriginal right. At the far end of the same spectrum lies another form of aboriginal right: aboriginal title. Therefore, aboriginal title is a form of an aboriginal right with the important distinction that it is a proprietary interest in a specific area of land. Visually:
Aboriginal rights
Cultural and linguistic rights - Rights relating to use of land - Aboriginal title (exclusive occupation)
The decision in Delgamuukw has recognized aboriginal title as a form of aboriginal rights, and has underlined the need for government to carry out consultation on aboriginal title. Section II outlines how considerations of aboriginal title can be incorporated into government consultation processes.
Compensation
It is the Province's view that compensation is the exclusive responsibility of the federal government.
II. CONSIDERATIONS FOR CONSULTATION - ABORIGINAL TITLE
A. INTRODUCTION
The remainder of this document outlines principles related to aboriginal rights and title, and a process to address consultation requirements raised in the Supreme Court of Canada's decision in Delgamuukw. These consultation guidelines are intended to enhance existing processes in order to address the potential for aboriginal title.
Accordingly, it is assumed that staff from line agencies have already received background training in policies and procedures to avoid infringing aboriginal rights. Staff who have not received training on their consultation process for aboriginal rights need to be instructed in these practices to ensure that the guidelines for considering aboriginal title are implemented in proper context.
--------------------------------------------------------------------------------
The following guidelines describe how decision makers should carry out their responsibilities for the allocation, management and development of Crown land and resources within the context of:
(a) the Crown's obligation to consult with First Nations; and
(b) assessing information gathered on potential aboriginal rights and title.
--------------------------------------------------------------------------------
As issues of aboriginal title are complex, it is important that methods outlined below are understood and applied in their entirety. Applying individual components of this document outside the larger context of the guidelines increases the risk of misinterpretation. Consistent application of the guidelines in this document across government is essential.
B. SCOPE
These consultation guidelines are effective immediately. This document will be implemented in conjunction with the Crown Land Activities and Aboriginal Rights Policy Framework and agency specific consultation procedures with respect to aboriginal rights. These guidelines apply to all applicable provincial ministries, agencies, and Crown corporations.
The guidelines do not address capacity building, interim measures, and linkage to treaty negotiations.
The guidelines below are intended to provide minimum requirements for provincial consultation activities with respect to aboriginal title. Efforts to exceed these minimum consultation requirements are encouraged.
C. OPERATIONAL GUIDELINES
The Province recognizes the need to streamline existing consultation processes and incorporate considerations of aboriginal title outlined in Delgamuukw. It is essential that consultation activities are well defined and carried out efficiently.
Consultation Principles
While the nature and scope of consultation may vary depending on specific circumstances, the fundamental principles of consultation are the same for both aboriginal rights and aboriginal title. Consultation efforts must be made in good faith with the intention of substantially addressing a First Nations' concerns relating to infringement. In practical terms, this means the quality of consultation is of primary importance.
The following principles apply to all consultation efforts, and should be followed throughout the entire process of consultation: The principles are also attached in Appendix B.
As the onus to prove aboriginal title lies with First Nations, staff must not explicitly or implicitly confirm the existence of aboriginal title when consulting with First Nations.
The province must assess the likelihood of aboriginal rights and title prior to land or resource decisions concerning Crown land activities.
Consultation should be carried out as early as possible in decision making.
Consultation is the responsibility of the Crown.
Statutory decision makers should take steps to ensure consultation activities contain proper representation from all potentially affected aboriginal groups.
Consultation processes need to be effective and timely, and meet applicable legislative timelines where possible.
Existing consultation procedures geared towards assessing aboriginal rights should include an assessment for the potential of aboriginal title.
The consultation process should inform decision makers of the potential infringement of aboriginal rights or title by a proposed activity.
Consultation on activities that involve a number of agencies should be integrated wherever possible to ensure maximum clarity and efficiency.
Consultation processes and operational decisions must not recognize the existence of aboriginal title for areas in question.
Consultation processes should be clearly defined to First Nations, along with explanations of how information will be used in decision making.
Consultation processes should illustrate how data provided by a First Nation was considered in decision making processes and planning, and how it will relate to other considerations.
Consultation processes can be carried out in a variety of ways, depending on the circumstances and nature of the proposed activity. Methods for meaningful consultation should be selected in relation to nature of the proposed activity, the requests of the First Nation, and other relevant factors.
The consultation process will inform the First Nation(s) of the potential "on the ground" effect of a proposed activity. Information should be provided in a manageable and understandable format, with adequate time for review.
What the Courts Say About Consultation Post Delgamuukw decisions to date have provided further commentary on consultation, and reaffirm a number of principles from previous cases, including Delgamuukw:
The courts continually encourage consultation and negotiation over litigation.
Consultation efforts must be meaningful and provide an understanding of a project's impact on lands and resources.
The courts have illustrated willingness to support consultation efforts which have been carried out in good faith.
First Nations cannot attempt to stall a project by foregoing participation until the final stages of consultation.
Consultation is a "two-way street" requiring First Nations to participate in consultation processes.
In the two injunction applications made post-Delgamuukw the courts found on a balance of convenience that the economic development of an area should not be unduly delayed given the specific circumstances of each case.
D. OPERATIONAL IMPLEMENTATION
As mentioned previously, the consultation guidelines contained in this paper are intended to enhance existing processes with respect to aboriginal rights in order to address the potential for aboriginal title. This section outlines the guidelines in detail.
The process below consists of a number of steps that can be summarized as:
Pre-Consultation Assessment
Step 1 - Initiate Consultation
Step 2 - Determine if activity will infringe or interfere with potential aboriginal title
Step 3 - Determine if potential infringement can be justified Step 4 - Look for opportunities to accommodate aboriginal interests/negotiate resolution
Again, it is important that each of the steps below are carried out uniformly, and in direct relation to the other elements of the guidelines.
Decision makers should consult with senior level personnel in their agency and where necessary Legal Services Branch, Ministry of Attorney General, when unclear on applying the guidelines.
Pre-Consultation Assessment
First Nations often state that they are not able to keep up with the volume of referrals sent by the Province. The Province shares this concern.
Additionally, provincial agencies often do not receive responses from First Nations to referrals, or receive blanket opposition to any development within traditional territories.
In order to address this problem, a number of factors may be used to evaluate whether a particular decision or activity will require consultation. This enables the Province and First Nations to conduct more meaningful consultation on activities that are particularly critical to both parties.
Using the Pre-Consultation Assessment
How do you determine if a particular type of activity requires consultation?
By examining the nature of the decision or activity in relation to the factors outlined on the following pages, government agencies may be able to provide a "general assessment" of whether consultation is necessary. This general assessment can be used to determine whether consultation may be unnecessary before proceeding with decision making processes, or to confirm that consultation should be pursued.
Examples of factors which can be considered prior to initiating consultation are outlined on the following pages. The clear presence of a number of the factors may provide decision makers with an indication that consultation is not necessary.
--------------------------------------------------------------------------------
IMPORTANT
--------------------------------------------------------------------------------
It is NOT likely that a single factor would overrule the need for consultation, except in very specific cases. However, a combination of these factors could illustrate that an activity may not require consultation.
In situations where decision makers are unsure whether an activity warrants consultation, ALWAYS use caution and initiate the steps of consultation in Section F. The following factors are reserved for use in cases where it is EXTREMELY clear that consultation may not be necessary.
--------------------------------------------------------------------------------
E. ASSESSMENT FACTORS
Extreme caution must be used when applying these factors, as the presence of one or more of the factors below does not preclude the potential existence of aboriginal title.
A combination of the following factors may illustrate that consultation is not required for a particular type of activity. The factors are grouped by the general headings of: Nature of Activity, Nature of Land, and Additional Factors.
--------------------------------------------------------------------------------
Nature of Tenure, Permit, Activity, Decision
Tenures which do not convey a right to actually operate on the ground (formalize an interest in an area without affecting the land).
Tenure/permit renewals with no changes.
Minor tenure/permit amendments.
Utility rights of way (hydro, gas, sewer, water, telephone, cable, etc.) of short length that serve existing domestic private property or subdivision.
Prior or current involvement of First Nation in the activity or project (note - must be First Nation involvement, not just involvement of First Nation individuals).
Permits, tenures, other approvals which are subsequent to previously consulted upon plans (e.g., cutting permit subject to forest development plan) with no change to the permit.
Short term, or temporary, activities (e.g., public event) Situations where land can be easily reclaimed (e.g., campsites, recreation sites).
Tenures issued pursuant to an option to purchase.
Transfer of administration and control of land to federal government.
Conversion of tenures/permits provided consultation was conducted prior to the issuance of the current tenure/permit, and permit was specifically discussed. (e.g., conversion of Section 14 Land Act permits to leases, licenses, rights of way).
Survey work.
Activities on private land.
Administrative changes to land designations within government.
Activities which reclaim land or restore lands to their original condition.
Seasonal use of land (in some cases).
--------------------------------------------------------------------------------
Nature of Land
Small amount of land, especially where land is inaccessible (e.g., mountain top communication sites).
Not near known traditional or archaeological site where archaeological or Traditional Use Studies have already been conducted.
Land within a municipal/city boundary or within urbanized areas where the level of development on adjoining properties precludes the maintenance of aboriginal interests on the subject property.
Land that has been previously developed in a manner that precludes the maintenance of aboriginal interests on the subject property.
Low land value (economic or intrinsic).
Removal, replacement of, or improvements to, existing infrastructure.
No known aboriginal use or interests, based on significant efforts to obtain information on aboriginal use. (Not restricted to traditional use.)
--------------------------------------------------------------------------------
Additional Factors
Emergency situations.
Public safety.
--------------------------------------------------------------------------------
After you apply the preassessment factors, and determine that consultation is necessary, carry out the process on the following pages.
In situations where consultation with First Nations is required, the four-step process outlined in this section should be applied.
It is important for decision makers to recognize and use a continuum of appropriate consultation mechanisms. The following steps provide the basis for selecting the appropriate consultation method, and questions appropriate for consideration during consultation.
--------------------------------------------------------------------------------
STEP 1
INITIATE CONSULTATION
--------------------------------------------------------------------------------
STEP 1(a)
CONSULTATION ACTIVITIES
Through consultation, decision makers need to make an initial determination on the POTENTIAL for aboriginal rights and title.
Of course, actual consultation methods (such as phone calls, meetings, exchanges of information) will vary from situation to situation, depending upon ways in which your agency has consulted with aboriginal groups in the past, the preferences of the First Nation, the type of information needed and other specific factors.
Regardless of the method used for consultation, it is important that decision makers select the means most appropriate for gathering information needed to consider the possible existence of aboriginal rights and/or title in their decision making processes.
Where consultation does not produce adequate information, decision makers need to rely on other sources of information (archaeological studies, traditional use studies, local knowledge, archival studies etc.), to make an initial determination of whether aboriginal interests in the area give rise to potential aboriginal title issues.
--------------------------------------------------------------------------------
IMPORTANT
In carrying out consultation activities, it is important that staff do NOT explicitly or implicitly confirm the existence of aboriginal title. The question before decision makers is to identify the POTENTIAL for aboriginal title in the area in question.
--------------------------------------------------------------------------------
STEP 1(b)
ASSESSING THE POTENTIAL FOR ABORIGINAL TITLE
In addition to consulting on aboriginal rights, decision makers need to undertake an "assessment" of whether aboriginal title may exist. Remember, decision makers are not to confirm or verify the existence of aboriginal title. The real question is to find out the potential of aboriginal title for the area in question.
A number of general "indicators" of aboriginal title can be used to assist in determining whether aboriginal title is a likely consideration. Decision makers should use these indicators in conjunction with information gathered through consultation and from other sources.
Indicators for the Potential of Aboriginal Title
A combination of the following may indicate the potential for existence of aboriginal title, and may indicate a need to increase the level of consultation:
Title to the land has been continuously held in the name of the Crown.
Indicators of aboriginal interests in the land, such as: (a) land near or adjacent to a reserve or former settlement or village sites; (b) land in areas of traditional use or archaeological sites;
(c) land used for aboriginal activities;
(d) notice of interest/aboriginal title from a First Nation; and
(e) land subject to a specific claim.
Undeveloped land such as parcels outside an urban area and close to known fishing, hunting, trapping, gathering or cultural sites.
If a decision maker encounters a number of the indicators above during the consultation process, they need to consider the POTENTIAL for aboriginal title in their decision making processes.
Similarly, there are a number of indicators that can point out that aboriginal title may not be a consideration in decision making processes.
Indicators Against the Potential of Aboriginal Title
A combination of the following may reduce the likelihood of existence of aboriginal title, and can indicate that lower levels of consultation are necessary:
Land alienated to third parties (length of occupation, and use and development by others will be important).
Land alienated on a long term lease to third parties.
Land within an area subject to an existing treaty (i.e., Treaty 8, Douglas Treaties).
Land developed.
Land distant from reserves or settlement areas with no known aboriginal interests.
Land within an urban area, or surrounded by development lands.
No indication that an aboriginal group has maintained a substantial connection or special bond with the land since 1846.
Decision makers must now make the following decision:
--------------------------------------------------------------------------------
STEP 1 DECISION
--------------------------------------------------------------------------------
If there is a potential of aboriginal title issues, go to Step 2.
If there is little or no likelihood of aboriginal title issues, make decision to proceed.
If decision makers determine there is no likelihood for aboriginal title, they must remember that the consideration of ABORIGINAL RIGHTS issues must STILL be part of decision making processes. Refer to your agency's procedures with regard to aboriginal rights.
--------------------------------------------------------------------------------
STEP 2
DETERMINE IF THE ACTIVITY WILL INFRINGE OR INTERFERE WITH POTENTIAL ABORIGINAL TITLE
This step involves reviewing the details of the proposed activity. Decision makers must determine whether the proposed activity is likely to infringe or interfere with the identified potential for aboriginal title.
Considerations for this process include:
Does the proposed activity interfere with aboriginal activities on the land?
(This would not be limited to traditional activities.) Will the activity change or damage the nature of the land, and to what extent?
If there is proposed resource extraction, is the resource renewable or non-renewable?
Will any of the land be sold to third parties as part of this activity?
Will long term leases or tenures be provided to third parties?
Are the leases or tenures renewable?
Decision makers must now make a decision with respect to the potential for infringement:
--------------------------------------------------------------------------------
STEP 2 DECISION
--------------------------------------------------------------------------------
If there is a likelihood of infringement, go to Step 3.
If there is little or no likelihood of infringement, make decision to proceed.
Again, if decision makers determine there is no likelihood for infringement, they must remember that the consideration of aboriginal rights issues must still be part of decision making processes.
--------------------------------------------------------------------------------
STEP 3
DETERMINE IF THE INFRINGEMENT CAN BE JUSTIFIED
The Supreme Court of Canada outlined the following test to justify infringement of aboriginal title. Decision makers must ensure that factors under both 1 and 2 below are considered and met:
1. Is the infringement in furtherance of a legislative objective that is compelling and substantial?
Compelling and substantial objectives are those which are directed at one of the purposes underlying the recognition and affirmation of aboriginal rights contained in s. 35 of the Constitution Act, 1982. In other words, this is a requirement that the legislative objective be compelling and substantial, and provides for a recognition of the aboriginal right in issue and seeks to reconcile that right with broader community interests.
The Supreme Court of Canada specifically stated that the development of agriculture, forestry, mining, hydroelectric power, the general economic development of the Province, protection of environment or endangered species, the building of infrastructure, and the settlement of foreign populations are the kinds of objectives that meet this test. Other court decisions have identified conservation, public safety, historical reliance on a resource by non-aboriginal people and regional economic fairness as valid legislative objectives.
2. Did the Crown meet its fiduciary obligation?
The Supreme Court of Canada stated that fiduciary relationship between the Crown and aboriginal people may be satisfied by the involvement of aboriginal people in the decisions taken with respect to the land. The nature and scope of the duty to consult will vary with the circumstances, ranging from mere consultation to consent in some cases.
The Supreme Court was clear that in most cases that aboriginal involvement in decision making had to be greater than "mere consultation." The consultation must be in good faith and with the intention of substantially addressing the First Nations concerns regarding infringement.
Factors to Consider:
In order to assist the decision maker in determining if a proposed development activity may justifiably infringe an identified potential for aboriginal title, it is recommended that they carefully analyze the details of the project in the following context. Be sure to document and describe all of the factors weighed during consideration.
Extent of infringement: There is a range of the types of justifiable infringements to aboriginal title (e.g., development with no chance of reclaiming land to its natural state vs. development of renewable resources). Types and levels of justifiable infringement may depend on the aboriginal connection to the land (e.g., infringement of potential title over a village site may have greater ramifications for government than infringement of potential title arising on hunting grounds).
Extent to which the fiduciary duty has been fulfilled: Has there been significant consultation and substantial effort to address any identified First Nations' concerns? Again, every effort to minimize infringement is required.
The decision for Step 3 follows. For anything other than minor infringements, decision makers should consult with senior level ministry personnel, and where necessary, Legal Services Branch, Ministry of Attorney General.
--------------------------------------------------------------------------------
STEP 3 DECISION
If the infringement is not justifiable, go to Step 4.
If the infringement is justifiable, make decision to proceed.
--------------------------------------------------------------------------------
STEP 4
LOOK FOR OPPORTUNITIES TO ACCOMMODATE ABORIGINAL INTERESTS, OR NEGOTIATE A RESOLUTION
If it is likely that the infringement examined during Step 3 is not justifiable, decision makers need to attempt to negotiate a resolution of the issue with the First Nation, or find a way to accommodate the interests of the First Nation, allowing the project to proceed.
This step may involve the use of interim measures, programs, training, economic development opportunities, etc. The range of activities that can be carried out in terms of coming to a negotiated resolution vary greatly from situation to situation, and according to agency policies and abilities.
In exceptional circumstances, this step may also involve seeking First Nations' consent. Seeking consent should be reserved for situations where the proposed activity is of critical economic importance to the Province and the indicators of aboriginal title are strong. Consent should only be sought after senior level review is completed in conjunction with legal advice.
--------------------------------------------------------------------------------
STEP 4 DECISION
--------------------------------------------------------------------------------
If accommodation or negotiation successful, make decision to proceed.
If resolution cannot be gained at this stage through negotiation, accommodation or other methods, it may be necessary to reevaluate the project.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Appendix A
Crown Land Activities and Aboriginal Rights Policy Framework
--------------------------------------------------------------------------------
Appendix B
Consultation Principles
--------------------------------------------------------------------------------
CONSULTATION PRINCIPLES
As the onus to prove aboriginal title lies with First Nations staff must not explicitly or implicitly confirm the existence of aboriginal title when consulting with First Nations.
The province must assess the likelihood of aboriginal rights and title prior to land or resource decisions concerning Crown land activities.
Consultation should be carried out as early as possible in decision making.
Consultation is the responsibility of the Crown.
Statutory decision makers should take steps to ensure consultation activities contain proper representation from all potentially affected aboriginal groups.
Consultation processes need to be effective and timely, and meet applicable legislative timelines where possible.
Existing consultation procedures geared towards assessing aboriginal rights should include an assessment for the potential of aboriginal title.
The consultation process should inform decision makers of the potential infringement of aboriginal rights or title by a proposed activity.
Consultation on activities that involve a number of agencies should be integrated wherever possible to ensure maximum clarity and efficiency.
Consultation processes and operational decisions must not recognize the existence of aboriginal title for areas in question.
Consultation processes should be clearly defined to First Nations, along with explanations of how information will be used in decision making.
Consultation processes should illustrate how data provided by a First Nation was considered in decision making processes and planning, and how it will relate to other considerations.
Consultation processes can be carried out in a variety of ways, depending on the circumstances and nature of the proposed activity. Methods for meaningful consultation should be selected in relation to nature of the proposed activity, the requests of the First Nation, and other relevant factors.
The consultation process will inform the First Nation(s) of the potential "on the ground" effect of a proposed activity. Information should be provided in a manageable and understandable format, with adequate time for review.
Translate
this page automatically. 
|
