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Duty to Consult with Aboriginal Peoples

Governments in Canada - both federal and provincial - are increasingly acknowledging the duty to consult with Aboriginal communities that arises as a result of Section 35 of the Constitution. Section 35 recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. Canadian courts (e.g. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, at para. 57) have ruled that whenever Crown decisions or actions have the potential to adversely affect treaty rights or any other Aboriginal or First Nations' interest, the Crown has a duty to consult potentially affected Aboriginal peoples, with the intention of accommodating or substantively addressing their concerns. Government decisions about public lands and waters within which Aboriginal peoples have an interest by definition therefore also can trigger the duty to consult.

Policies or guidelines for Consultations with Aboriginal peoples need to be designed to ensure that the duty to consult is fulfilled in a way that is consistent with current legal decisions and is respectful of individual communities' traditions and consultation requirements.

Hydro Controversy in Nova Scotia

Sierra Club Canada logo Newfoundland's Crown-owned Nalcor Energy and Nova Scotia's Emera Inc. signed a $6.2 billion agreement on the Lower Churchill Hydro Project (LCHP) November 2010. The plan is to build two new dams on the Churchill River - Muskrat Falls and Gull Island - with combined electrical capacity of 2800 megawatts. Most of this electricity will be moved to Nova Scotia by underwater cables.

The Full Panel Environmental Assessment hearing for LCHP commenced March 4, 2011 and is expected to last until April 16, 2011.

"There is no provincial market for this energy. This project will destroy the Churchill and its watershed just to leave a legacy for Danny Williams," said Roberta Benefiel, Grand (a.k.a.Churchill) Waterkeeper. "It is not clean, not green and sadly not needed, here or elsewhere."

"If the Upper Churchill Project was Joey Smallwood's' mistake when he gave power to Québec for less than a penny a kilowatt, this project is Danny's Delusion. If this legacy project goes forward, power will be given away at a highly discounted rate for thirty-five years. It's unacceptable and the people of Labrador don't support it," said Sierra Club Canada campaigner Bruno Marcocchio.

The NunatuKavut, formerly known as the Labrador Métis Nation, filed a court application March 1, 2011 to obtain an injunction to halt the environmental panel hearings claiming their constitutional rights to consultation have not been taken seriously by the provincial government, the environmental panel or by the developer Nalcor Energy.

"In order to make 'green' energy, they're flooding Labrador. It's been the same story with the Upper Churchill. They flooded an area nearly the size of the Avalon Peninsula to bring 'green' energy down into North America. We only heard about this Muskrat Falls deal the day before on the news. No one in government called us about it until after the news release. We're saying this is our territory. We've always been here. This is our home. Why are we being excluded?" said Chris Montague, president of NunatuKavut.

"Our consent is required, but it has not yet been obtained. This will only happen if the Innu people are satisfied that the benefits of this project will outweigh the impact" Joseph Riche, grand chief of the Innu Nation said.

View March 9, 2011 CBC News article
View March 9, 2011 Winnipeg Free Press article
View March 7, 2011 CBC News article
View March 3, 2011 Sierra Club of Canada press release
View March 3, 2011 Saint John's Telegram article
View February 28, 2011 Sierra Club of Canada press release
Source: Sierra Club of Canada, CBC

Government of Canada Policy and Guidelines for Aboriginal Consultation

downloadDownload February 2008 Canada's Aboriginal Consultation and Accommodation: Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult (PDF)
downloadDownload 1993 NRTEE's Building Consensus for a Sustainable Future: Guiding Principles (PDF)

Manitoba Policy and Guidelines for Aboriginal Consultation

In June 2010 Premier Selinger mandated a set of in person meetings between Chiefs of Manitoba First Nations, and members of cabinet and executive staff of government departments. The aim appears to have been to advance the process of arriving at meaningful and clear consultation standards, and principles for Aboriginal/Crown consultations in Manitoba.

Manitoba Wildlands is making available the transcript of an August 2010 power point presentation being used when Aboriginal and Northern Affairs staff make community presentations regarding the duty to consult.

downloadDownload August 10, 2010 Aboriginal & Northern Affairs presentation (DOC)

During early 2009 Science Technology Energy and Mines Manitoba prepared a process and standards for consultations with Aboriginal and First Nation communities regarding exploration, and mining activities.

downloadDownload 2009 Manitoba Procedures for Crown Consultation with Aboriginal Communities on Mineral Exploration (PDF)
downloadDownload 2009 Manitoba Procedures for Crown Consultation with Aboriginal Communities on Mine Development Projects (PDF)

In May 2008 the Manitoba Government released its Provincial Policy for Crown Consultations with Aboriginal Peoples. The Policy and Guidelines contains principles to guide the consultation between the Government of Manitoba and an affected Aboriginal community when a consultation is required. It contains a list of considerations to be reviewed as part of the process of designing a consultation protocol between government and an individual community. The new policy does not appear to apply to Métis peoples in Manitoba, despite being titled as if it applies to consultations between both First Nations and Métis communities and the Manitoba government.

downloadDownload May 2008 Government of Manitoba Provincial Policy for Crown Consultations with Aboriginal Peoples (PDF)

The May 2008 policy statement expands on the draft policy statement released in 2007 (see below). It contains additional 'Guiding Principles' regarding, for instance,
  • the responsibility of government to share information with communities before or during consultation in a manageable and understandable format
  • the responsibility of government to make all reasonable efforts to address concerns identified by communities
  • the responsibility of government to ensure that it reports back to communities as to how the information provided by the Aboriginal community was incorporated into the decision-making process and how concerns were addressed
Another addition to the 2008 policy is a statement at the end of the list of Guiding Principles, "If the Government of Manitoba provides a reasonable consultation process and an Aboriginal community chooses not to participate, it may limit the ability of the Aboriginal community to challenge a government action or decision for failure to consult."

This policy has not yet been subject to review by independent legal counsel. As of mid May there is no indication of steps for alterations, additions, or ratification of the contents of this 2008 paper. Nor has there been any indication of results of review of the 2007 consultations paper. Responsibility for Aboriginal consultations appears to have moved from a branch inside Manitoba Conservation to Manitoba Aboriginal Affairs.

The Government of Manitoba released a draft Provincial Policy and Guidelines for Consultations with Aboriginal Communities for comment and feedback in September 2007.

downloadDownload September 2007 Government of Manitoba draft Provincial Policy and Guidelines for Consultations with Aboriginal Communities (DOC)

downloadDownload May 2009 Government of Manitoba Interim Provincial Policy For Crown Consultations with First Nations, Métis Communities and Other Aboriginal Communities (PDF)

Prior to the release of the September 2007 draft consultation policy, Manitoba did not have any standards in place for consulting with Aboriginal communities. The draft posted above has not to date been endorsed by any First Nation or Aboriginal entities in the province.

Manitoba Conservation Consultation Memo

In 2002 Manitoba Conservation was setting up its standards for Aboriginal consultations regarding any decisions which might have potential to impact Aboriginal Rights. Manitoba Conservation holds all policy and licensing responsibility for use of crown lands in Manitoba. ( over 80% of the province is crown lands. )

We are providing here a document leaked to Manitoba Wildlands from November 2002, and clearly Manitoba Conservation material.

downloadDownload November 2002 Manitoba Conservation Consultation Memo (PDF)

Updated BC Procedures for Meeting Legal Obligations
When Consulting First Nations

downloadDownload May 7, 2010 Province of British Columbia document (PDF)

British Columbia Policy/Aboriginal Consultation Guidelines

The Government of British Columbia, Ministry of Forests established written policy and guidelines for consultation with Aboriginal peoples in 2003.

downloadDownload May 14, 2003 BC Ministry of Forests Aboriginal Rights and Title Policy (PDF)
downloadDownload 2003 BC Ministry of Forests Aboriginal Consultation Guidelines (PDF)

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