Transcript Native American Heritage Month Presentation

IRWA’s 56th International Education
Conference
“Processes and Considerations in
Transfers of First Nation Indian Reserve
Lands”
June 29, 2010
Lorne J. Ternes Professional Corporation
Box 300, 3-11 Bellerose Drive
St. Albert, Alberta T8N 5C9
The Issue
• Why is it so difficult to build commercial,
industrial or other projects on Canadian
Indian reserves? Why is it so difficult to
complete “land-use” projects on Indian
reserves such as;
• irrigation projects,
• golf courses,
• hydro dams,
• municipal roads,
• city freeways or provincial/national
highways?
The Issue
• Why is it so difficult to transfer
Indian reserve land to other
Parties for projects?
Constitution
Act, 1867
Distribution of Legislative Powers
under the Constitution of Canada
s.91 – The heads of power exclusive to
Parliament:
The exclusive Legislative Authority of
the Parliament of Canada extends to all
matters coming within the Classes of
Subjects next hereinafter enumerated;
that is to say, …
24. Indians and Lands reserved for the
Indians
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Constitution Act,
1867
• There is not a lot of commercial, industrial
or other activity on Indian reserves partly
because much of the law making power
respecting such projects is vested in the
Provincial Government, not the Federal
Government.
• s.92 of the Constitution Act, 1867 sets out
the heads of power exclusive to Provinces.
Much of the environmental and “land-use”
law is a provincial head of power.
Constitution Act,
1982
As of April 17, 1982 The Constitution of Canada was significantly
amended in a manner that has served as a catalyst for recognition
and enforcement of aboriginal and treaty rights across Canada.
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
35 (1) The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed.
(2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian,
Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) ‘treaty rights’ includes
rights that now exist by way of land claims agreements or may be so
acquired.
THESE ARE UNDEFINED RIGHTS
GENERAL
52. (1) The Constitution of Canada is the supreme law
of Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
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Constitution Act,
1982
• In Alberta, First Nations continue
to hold Aboriginal and Treaty
rights on-reserve.
• This category of rights are
primary constitutional rights.
• The Aboriginal peoples of Canada
may also hold these types of
rights off of Indian reserves in
some instances.
Constitutional Limitations
• Because Indian reserves are “federal
lands“, provincial law does not apply if the
provincial law:
• Singles out Indians as “Indians”
• Affects integral part of Parliament’s primary
jurisdiction over s. 91(24) – “Indianness”
• Is inconsistent with the Indian Act, or other
federal law
• Case law has set out that provincial law
cannot be directed towards the “use” that
Indian reserve land may be put … but can
apply to “activities” carried out on land
Provincial Expropriation Acts
are Land-Use Statutes
Calgary RingRoad
Tsuu T’ina IR
10
Calgary Ring Road
Proposal
• In a June 30, 2009 referendum Tsuu T’ina
First Nation members reject an offer from
Alberta that included:
• 400 hectares of land to Alberta from Tsuu
T’ina First Nation to Alberta for the Calgary
Ring Road Project
for
• 2,000 hectare of land from Alberta to the
First Nation on the NW of an existing
Indian reserve
• 240 Million Dollars from Alberta
Lessons Learned
• Because this is Indian reserve (federal):
• The Community must approve the transfer
through a referendum (Indian Act)
• Canada must approve the deal and must be
engaged early on in the process.
• The Federal Cabinet must pass a Privy Council
Order that removes the land from s. 91 (24)
status and transfers that land to Alberta
(province)
• Because of the 2001 Supreme Court of Canada
Osoyoos case, Canada can only authorize the
removal of lands from Indian reserve status if
Canada is convinced that no greater rights are
taken than what is needed for the public purpose.
Time Issues
• These requirements mean that it will take
a great deal of time to:
• Negotiate with the First Nation (no
expropriation)
• Convince Canada that the type of taking
(especially if a transfer) is appropriate
• Convince the First Nation leadership and
community that the proposal is fair and too
good a deal to reject
• Transfer the land through a Privy Council
Order Process
Osoyoos Indian Band v. Oliver
(Town), [2001] SCC
• In 1925 an irrigation canal is built through an
Indian reserve using a transfer process under the
federal Indian Act.
• The title in 1961 ends up in the hands of the
province (British Columbia).
• The Town of Oliver operates and maintains the
canal.
• In 1995 the First Nation;
• believes the original transfer did not remove
the land from Indian reserve status,
• has the land assessed, and
• taxes the town.
• The Town objects.
Osoyoos Indian Band v. Oliver
(Town), [2001] SCC
• The Supreme Court of Canada held that the Privy
Council Order did not evidence a clear and plain
intention to totally extinguish the First Nation’s
interest in the canal lands.
• Canada has a fiduciary relationship with the First
Nation requiring Canada to satisfy itself 1.) the
expropriation is in the public interest and 2.) to
only “expropriate or grant only the minimum
interest required in order to fulfill that public
interest.”
• The nature of the 1925 transfer was like a
leasehold interest and therefore subject to First
Nation taxation (like a statutory easement).
Lessons Learned
• Be absolutely certain that the Community
understands and supports the “public
interest” of the proposed taking
• It is absolutely critical that the Community
receive information about the project and
proposal in a timely and continuing manner
• Many First Nations and Community members
distrust government and industry
• This distrust is a perfect petri dish for
suspicion
• You must be very generous in budgeting the
time for each stage of the project
FNCIDA
• Examine the interest in land needed to support the
project. If a transfer (out of Indian reserve status) is
not needed, consider the First Nations Commercial
and Industrial Development Act (FNCIDA) option.
• FNCIDA allows Indian Affairs and Northern
Development to referentially incorporate provincial
laws into a federal regulation. The regulation then
provides the law to support the particular onreserve project.
• This is one way a project proponent can avoid the
transfer process and keep the project on Indian
reserve lands.
Duty to Consult and
Accommodate
• Project Proponents must also be aware that offreserve, Aboriginal peoples also continue to hold s.
35 Constitution Act, 1982 constitutionally protected
rights respecting existing aboriginal and treaty rights.
• There is a procedural duty to investigate if these
rights exist.
• If a project does infringe or will infringe rights, there
is a substantive duty to consult and accommodate
with the Aboriginal people affected.
• Failure to satisfy the procedural duty or the
substantive duty (if it exists) can result in the Court
issuing injunctive relief and perhaps striking the
authority of the “transfer”.
1997 Delgamuukw Justification/Consultation
Spectrum Calibration in an Aboriginal Rights
Context
(+)
Range of
severity of
impact the
use has on
Activity Based Right
Single oil &gas well &
low profile road in area
used by several aboriginal
groups for hunting
the land in
Question
Aboriginal Title
Large open pit mine
over sacred burial ground
Consent
Consultation
Cultural Rights
Museum built &
maintained to promote
aboriginal culture, site
located by aboriginal people
(-)
Notification
Discussion
Type of right
Type of Consultation
Theoretical impact
(+)
How integral is the land in question to fostering, maintaining the distinct culture Apsassin v. BC Oil & Gas Commission
(2004) – BCCA Treaty case indicates Courts in calibrating consultation requirements
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will also consider if the First Nation provides meaningful information.
QUESTIONS?