Transcript CONSULTATION FOLLOWING MIKISEW DECISION

ABORIGINAL
CONSULTATION
UPDATE
Presented to
Alberta Chamber of Resources
Calgary, AB
June 6, 2007
Stan Rutwind, QC
Acting Director
Constitutional Law and Aboriginal Law
Alberta Justice, Edmonton
e-mail: [email protected]
June 1, 2007
The view of this paper are those of the Presenter only
and are not necessarily the views of Alberta Justice
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Mikisew Cree First Nation v. Canada,
Copps, Thebacha Road Society et al.
Released November 24, 2005
Unanimous decision of Supreme Court of
Canada
The Facts
Canada approved a 118 km Winter Road in
Wood Buffalo, which passed through Mikisew’s
Reserve.
Mikisew objected to road approval.
TREATY 8
COMPETING INTERESTS

First Nations have a right to hunt, fish and trap
for food .
vs.
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Canada and Alberta have a right to take up
lands from time to time for settlement, mining
lumbering, etc. (“Taking Up Clause”)
PRE-MIKISEW
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Sparrow Approach
– Infringement and justification

Halfway River Approach
– Taking ups infringe
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Haida and Taku
– Asserted aboriginal rights can trigger duty of
consultation
– Not in a treaty area
MIKISEW APPROACH:
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Consultation is the road to reconciliation.
(50), (63)
There is a freestanding duty of consultation
which flows from the honour of the Crown.
It is independent of the duty of consultation
which is a component of the Sparrow
justification. (33) [R. v. Sparrow (1990), the
Supreme Court of Canada held that if the
Crown infringes treaty rights it is open to the
Crown to justify that infringement. One
component
of
that
justification
is
consultation].
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The duty of consultation flowing from the
honour of the Crown is a procedural treaty
right and there is no link to fiduciary duties.
(51), (57)
The Crown has a treaty right to take up lands
(31) and the taking up does not infringe a
treaty right (32) (yet see paragraph 48). The
Crown has an obligation to inform itself of
the impact the project will have on treaty
rights and communicate that to First Nations.
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“Other purposes” in the taking up clause of the treaty
should be interpreted broadly. The creation or a road
clearly falls into the category of “other purposes.”
(24), (60)
The trigger threshold for the duty of consultation is
slight – is there the potential for adverse impacts on
treaty rights? (64)
The content of the duty of consultation is variable and
is at the low end of the scale for surrendered lands
subject to the taking up limitations and where, as here,
the taking up is relatively minor – the creation of a
road. (64)
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There must be notice to the First Nation,
engagement with them including information
about the project, the Crown’s knowledge of
the impact on those interests and the Crown’s
view of potential adverse impacts on those
interests. The Crown must solicit and listen
carefully to First Nations concerns and attempt
to minimize impact on treaty rights. (64)
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The First Nation must carry out their end of the
consultation, make their interests known, respond to
the Crown’s attempt to meet their concerns and
suggestions and try to reach some mutually
satisfactory solution. (65)
There is no First Nation veto. (66)
The treaty right (e.g. hunting) is linked to hunting in
that First Nation’s traditional territory. (47)
If there is no more meaningful right to hunt in
traditional territories there would be a potential action
for treaty infringement and a demand for Sparrow
justification. (48)
Private Lands:
Hupacasath First Nation v. British Columbia,
[2005] BCSC 1712
 Application for Judicial Review of decisions
granting requests by Weyerhaeuser to remove
privately owned land from TFL44 and to
determine new allowable cut.
 Crown has duty to consult on private land
where Crown’s actions might adversely affect
Aboriginal rights and title.
 Content of duty is at low level.
Paul First Nation v. Parkland (County), 2006
ABCA 128
 Paul Band argued Crown required to consult
before Subdivision and Development Appeal
Board issued permit.
 There is no duty of consultation on the Crown
on landowners regarding privately held lands.
 Hupacasath distinguished as it involved an
operative transfer of lands into a publicly
funded program followed by an attempt to
remove lands out of that program.
Standard of Review
Haida Nation v. British Columbia (Minister),
[2004] 3 S.C.R. 511, 2004 SCC 73
 Process likely subject to standard of
reasonableness
 Misconception of seriousness of claim or
impact of infringement is likely subject to
standard of correctness
Delegation
Haida Nation, supra
 Duty of consultation on the Crown
 It may delegate procedural aspects of the duty
Early Consultation
R. v. Douglas et al., [2007] BCCA 265
 Sparrow justification case
 Issue of adequacy of consultation
 Consultation is a two way street
 Also, where appropriate consultation is held on a strategy,
there is no need to consult on subsequent actions where
they are consistent with the overall strategy
 Also see Haida Nation, para. 75-76
Injunctions
Platinex v. Kitchenuhmaykoosib Inninuwug First Nation, [2006] O.J. No.
3140 (Ont. S.C.J.). (“Platinex 1”)
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Released July 28, 2006
G.P. Smith J. granted an "interim, interim injunction" prohibiting
Platinex from proceeding with exploratory drilling
Two conditions to the grant of injunction:
– that FN release to Platinex any property removed by it from the
drilling camp, and
– that FN set up a consultation committee to meet with
representatives of Platinex and the Provincial Crown.
Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation 2007
CarswellOnt 2995 (“Platinex 2”)
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Released on May 1, 2007
Application by FN, a signatory to Treaty No. 9, for an injunction to
prohibit a mining company from carrying out test drilling on provincial
Crown lands
July 2000, FN filed a treaty land entitlement claim
February 2001, FN declared a moratorium on further development in its
asserted traditional territory pending resolution of the TLE Claim
In 2005 and 2006, Platinex planned to drill some 24 – 80 exploratory
holes
The decision (Platinex 2)
• The mining claims and leases granted to Platinex , and
Platinex’s interest in drilling gives rise to a potential adverse
impact to FN
• All aboriginal title and interest in the land was surrendered
when Treaty 9 was signed
• Consultation had taken place over a period of nine months and
was beneficial in identifying FN’s fears and concerns
• Balance of convenience favour Platinex but Platinex should
not be given a carte blanche to proceed
• Development should proceed slowly with Ontario, Platinex
and FN continuing to be engaged in consultation
• Court will supervise the consultation process
QUESTIONS
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STAN RUTWIND (780) 427 - 1242