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THE DUTY TO CONSULT YOUR FIRST NATION NEIGHBOURS

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THE DUTY TO CONSULT YOUR FIRST NATION NEIGHBOURS Powered By Docstoc
					    MUNICIPALITIES
AND THE CONSTITUTIONAL
 DUTY TO CONSULT AND
     ACCOMMODATE
      ABORIGINAL
     COMMUNITITES
THE DUTY’S HISTORICAL AND
       LEGAL BASIS
Ø   Pre-Sovereignty Occupation and Use – Here First
    Ø   Wewaykum Indian Band v. Canada
Ø   Honour of the Crown & Reconciliation of Rights –
    Not Conquered, Not Ceded, Existing
    Ø   Delgamuukw v. British Columbia
Ø   Distinct from Fiduciary Duty
    Ø   Surrender of reserve or title lands to Crown vs. sharing of
        lands with Crowns and other entities
    Ø   Haida Nation v. British Columbia (Minister of Forests)
     ABORIGINAL RIGHTS ARE
     CONSTITUTIONAL RIGHTS
Ø S. 35 Rights & Principle of Reconciliation
   35.
   (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
       recognized and affirmed.

   Definition of "aboriginal peoples of Canada"
   (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples
       of Canada.

   Land claims agreements
   (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.
           PRIMACY OF
      CONSTITUTIONAL RIGHTS

Ø   Primacy of Constitution of Canada
    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.

Ø   Aboriginal Rights cannot be overridden or ignored by
    Parliament or the Legislature in legislation, policy or
    actions
WHEN DOES THE DUTY ARISE?

Ø S. 35 – Treaties, Modern Treaties, and other existing Aboriginal Rights
  and Aboriginal Title
   Ø R. v. Badger; R. v. Powley; R. v. Van der Peet; Delgamuukw v.
      British Columbia; R. v. Sparrow
   Ø most often related to historical land and water use
Ø Constructive knowledge of a claimed Aboriginal Right and potential
  negative impact on same through a proposed project of any entity
  engaging legislation, policy or activity of the Crown
   Ø Haida Nation v. British Columbia (Minister of Forests)
Ø Egs. environmental approvals, forestry and mining licenses and
  rehabilitation plans, road development, hydro development, sale of
  Crown lands, etc.
    WHAT DOES THE DUTY TO CONSULT
      AND ACCOMMODATE ENTAIL?
Ø   Measuring the strength of the claimed Aboriginal Right and potential
    impact thereon of proposed project, legislation, policy or activity
Ø   Meaningful & good faith Consultation from outset of process; on the
    process, the potential impact on the claimed Aboriginal Right and potential
    reconciliation initiatives
Ø   Spectrum of Accommodation – Notice of proposed activity to further
    Accommodation through changes to a project, approval, legislation, policy
    or activity and/or compensation
Ø   Consent? Xeni Gwet’in First Nations v. British Columbia
Ø   Continuing Duty Regarding Rights and Project Evolution
     Ø Haida Nation v. British Columbia (Minister of Forests)

     Ø West Moberly First Nations v. British Columbia (Ministry of Energy,
        Mines and Petroleum Resources)
     TO WHOM DOES THE DUTY
            APPLY?
Ø Federal Crown
   Ø The assertion of British sovereignty in 1760 and Royal Proclamation of
      1763
   Ø Calder v. British Columbia (A.G.) – 1973 – prior occupation and use

   Ø Honour of the Crown = duty to reconcile rights and interests in un-
      ceded lands
Ø Provincial Crown
   Ø St. Catherine’s Milling and Lumber Co. v. The Queen -1888

   Ø Confederation and s. 109 of the Constitution Act, 1867

Ø Non-delegable Honour of Crown and Crown responsibility to Consult and
  Accommodate
   Ø Haida Nation v. British Columbia (Minister of Forests);West Moberly
      First Nations v B.C. (Ministry of Energy, Mines and Petroleum
      Resources)
Ø Delegate procedural aspects of Duty by statute or regulation to assist in
  fulfilling the Crown mandate to Consult and Accommodate
   Ø Haida Nation v. B.C.; R. v. Adams; Rio Tinto-Alcan Inc. v. Carrier
      Sekani Tribal Council
              MUNICIPALITIES
Ø   Geographical statutory corporations – limited
    jurisdiction and natural person powers
Ø   Not Crown Agents
Ø   No statutory delegation of the procedural aspects of
    the Duty to Consult to Municipalities in Canada
Ø   Limited statutory provisions for general or Aboriginal
    consultation or Ministry directives for Aboriginal
    consultation do not equate to the procedural aspects
    of the Duty to Consult and Accommodate
    Ø   Egs. Planning Act, EAA, EPA, OWRA, HA, Green Energy
        Act and MMAH, MOE and MNR directives or policies
    CURRENT MUNICIPAL CASES
Ø   Red Bay and Howendale Resident Group v. Bruce (County) – 2011 - ON
     Ø OMB held that Crown and/or MMAH and not the County was responsible to
        Consult with Saugeen Ojibway Nation regarding proposed OP amendments
        and potential affect of same on Aboriginal Rights claimed
Ø   Brantford (City) v. Montour – 2010 - ON
     Ø Issue of City injunction request to allow development of private lands

     Ø Court held in awarding injunction that City was not responsible to Consult
        beyond statutory consultation due or for compensation for inadequate
        consultation or delegation of Provincial jurisdiction over Municipal lands in
        question
Ø   John Voortman & Associates Ltd. v. Haudenosaunee Confederacy Chief Council –
    2009 - ON
     Ø Issue of private owner seeking injunction to continue development of private
        lands under subdivision approval
     Ø Court held that any Duty to Consult re: subdivision approval belongs to the
        Crown and Municipal statutory consultation not substitute for this Duty
    CURRENT MUNICIPAL CASES
Ø   Musqueam Indian Band v. Richmond (City) – 2005 – BC
     Ø   Issue of Municipal approval for location of Provincial gaming facility
     Ø   Court held that Municipal statutory consultation obligation met but that
         Municipality not the Crown and no jurisdiction for Duty to Consult
Ø   Paul First Nation v. Parkland (County) – 2006 – AB
     Ø   Issue of Municipal approval of a gravel pit
     Ø   Court held Duty to Consult applies only to development of publicly held lands
Ø   Adams Lake Indian Band v. British Columbia – 2011 – BC
     Ø   Issue of incorporation of new Municipality and affect on Aboriginal Rights
     Ø   Court held Province responsible to Consult on delegation of jurisdiction to the
         new Municipality and that a condition in the Letters Patent that the
         Municipality consult was inadequate to meet the Crown Duty to Consult and
         Accommodate
     Ø   See also Gardner v. Williams Lake (City) – 2006 – BC
        MUNICIPALITIES CON’T
Ø   Crown compensation for illegal surrender of Municipal private
    or public lands or unreasonable use infringement by
    occupation or incompatible use resulting from the exercise of
    Municipal jurisdiction
    Ø   Chippewas of Sarnia Band v. Canada (A.G.)
    Ø   Mikisew v. Cree First Nation v. Canada (Minister of Canadian
        Heritage)
Ø   Duty to Consult and Accommodate lies upstream of all
    Municipal legislation and directives to Municipalities
Ø   Remedy Tail Does Not Wag the Liability Dog
Ø   Court responsibility to adjudicate if Crown fails to fulfill its
    Duty and Honour in actions or delegation of jurisdiction over
    lands to Municipalities
             CORPORATIONS
Ø   No independent Duty to Consult or Accommodate
    Aboriginal communities
    Ø Haida v. British Columbia (Minster of Forests);
      Rio Tinto-Alcan v. Carrier Sekani Tribal Council
Ø   But …
    Ø Broad natural person powers for use of resources

    Ø For profit entities

    Ø Expediency

n   Wahgoshig v. Her Majesty the Queen in Right of
    Ontario – 2011 - ON
             WE ARE ALL IN THIS
                 TOGETHER
Ø   Build Relationships with your First Nation and Aboriginal
    community neighbours
Ø   Work together to ensure the Crown is at the table on day one
    of any project development or legislative or policy initiative in
    which you have an interest
Ø   Support the Crown-Aboriginal consultation and
    accommodation process with use of your community facilities,
    historical, community and geological knowledge, and personal
    relationships with your Aboriginal community neighbours
Ø   Reject insufficient delegation initiatives at the outset to ensure
    certainty, timeliness and satisfaction of the Consultation
    process and any ultimate Accommodation due from the Crown
Ø   To the Courts as a Last Resort!
   THANK YOU!

 CHANTELLE J. BRYSON
  B.A., LL.B., Juris Doctor
    Tel: (807) 623-2500
    Fax: (807) 622-7808
cbryson@buset-partners.com

				
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posted:9/10/2013
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