COLLABORATIVE NATURAL RESOURCE MANAGEMENT: A CASE STUDY OF FORESTRY SECTOR OPERATIONS ON NADLEH WHUT EN FIRST NATION TERRITORY.

COLLABORATIVE NATURAL RESOURCE MANAGEMENT: A CASE STUDY OF FORESTRY SECTOR OPERATIONS ON NADLEH WHUT EN FIRST NATION TERRITORY by Rebecca Delorey BPL, University of Northern British Columbia, 2017 THESIS SUBMITTED IN PARTIAL FULFILLMET OF THE REQUIREMENTS FOR THE UNDERGRADUATE THESIS IN ENVIRONMENTAL PLANNING (ENPL 430-3) UNIVERSITY OF NORTHERN BRITISH COLUMBIA April 2017 Rebecca Delorey, 2017

Abstract Through a case study of the referrals process related to forestry sector operations on Nadleh Whut en Territory, this research explores how forestry companies and Nadleh Whut en knowledge holders and land users understand the duty to consult. Co-management is presented as an alternative framework for how Nadleh Whut en might strengthen decisionmaking authority over natural resource management on their Territory. Specifically, equal capacity, social learning, and indigenous knowledge, three factors identified for successful co-management with indigenous peoples and communities, frame my data analysis, results and discussion, and final recommendations. Semi-structured interviews with Nadleh Whut en knowledge holders and land users and forestry key informants reveal human and financial capacity, knowledge, power, shared motivation and willingness, cross-cultural dialogue, and relationship building as key sub-themes for successful co-management between Nadleh Whut en and forestry companies operating on their Territory. This research contributes to Nadleh Whut en s local policy and process development and is geared toward fostering an understanding of how co-management can be supported on Nadleh Whut en Territory. ii

TABLE OF CONTENTS Abstract... ii List of Tables... v Acknowledgements... vi Chapter One - Introduction... 1 1.1 Research rationale, goals, and research questions... 1 1.2 Nadleh Whut en First Nation... 2 1.3 Language... 4 1.4 Overview of the thesis... 4 Chapter Two - Literature Review... 6 2.0 Co-management: There is more than one approach... 6 2.1 Co-management: The principles it is based upon... 8 2.2 Co-management: Perspectives from indigenous communities... 10 2.3 Legal history of consultation, accommodation & consent... 13 2.4 Aboriginal consultation, accommodation & consent: Flaws in a centralized approach to consultation in resource management... 23 2.5 Success in co-management with indigenous communities: The importance of equal capacity, social learning, and indigenous knowledge... 27 2.5.1 The importance of indigenous knowledge... 29 2.5.2 The importance of social learning... 31 2.5.3 The importance of equal capacity building... 32 Chapter Three - Methods... 35 3.0 Introduction... 35 3.1 Principles for responsible research with indigenous communities... 36 3.2 Methodology... 40 3.3 Generalizing case study findings... 42 3.4 Research design... 43 3.4.1 Participant selection... 44 3.5 Data collection... 45 3.6 Data analysis... 48 3.7 Positionality... 49 Chapter Four - Results and Discussion... 52 4.0 Introduction... 52 4.1 Equal capacity... 52 4.1.1 Human capacity... 53 4.1.2 Knowledge... 56 4.1.3 Financial capacity... 59 4.1.4 Power... 60 4.2 Social learning and indigenous knowledge... 62 4.2.1 Shared motivation and willingness... 63 4.2.2 Cross-cultural dialogue... 66 4.2.3 Relationship building... 67 iii

Chapter Five - Conclusion... 70 5.1 Discussion of research questions... 72 5.2 Actionable recommendations... 76 5.2.1 Equal capacity... 76 5.2.2 Social learning and indigenous knowledge... 77 References... 78 Appendix A... 84 Appendix B... 86 iv

List of Tables Table 1: Types of co-management... 8 Table 2: Principles and perspectives of consultation... 27 Table 3: Interview chart... 46 v

Acknowledgements I extend my sincere thanks to the Nadleh Whut en First Nation who have collaborated with myself and the School of Environmental Planning on this research project. In particular, I would like to thank Chief Larry Nooski and Beverly Ketlo for their direction, feedback and comments, and the knowledge holders and land users who voluntarily participated in this research. My supervisors, Dr. Mark Groulx and Angel Ransom, have guided me through this process. Their direction, support, and encouragement have fostered an unforgettable learning experience that I will take with me throughout my academic and professional careers, thank you. I would also like to thank Dr. Darwin Horning and Rick Krehbiel, J.D. for their valuable feedback and comments. Lastly, I extend my appreciation to the Lheidli T enneh First Nation, whose land I have been studying on over the past four years. vi

Chapter One - Introduction 1.1 Research rationale, goals, and research questions Co-management is increasingly employed by indigenous peoples and communities to advance their interests with regards to resource management. There is a growing body of literature focused on indigenous models of co-management that challenge many of the western models by placing greater emphasis on shared decision-making authority than its counterparts (Tipa & Welch, 2006). These models challenge the consultative aspects of comanagement and the notion of First Nations as one of many stakeholders that are prevalent in western models. Nevertheless, consultation, guided by the duty to consult, continues to frame communication between First Nations, government and industry around the impacts of activities on Aboriginal rights and title. In theory, it is through consultation that First Nations are able to discuss how their interests, values, and objectives relate to proposed activities on their traditional territories. Described in more detail below, the referrals process is a procedural aspect of consultation that has significance both for the Nadleh Whut en First Nation (Nadleh Whut en) and other First Nations across the province, as it is a primary way in which proponents share information and initiate communication with First Nations with regards to proposed resource extraction activities. Nadleh Whut en s interest in shared decision-making around natural resource activity on their Territory has directed the use of co-management as a framework for this research, as well as the decision to examine the referrals process as an important facet of consultation. This research comes at an important point in time as Nadleh Whut en is in the process of developing a process to effectively manage and respond to 1

referrals. Examining referrals as part of effective co-management serves to fill a gap in the literature around co-management, which has largely omitted the legal duty to consult that contributes to the Canadian context involving Aboriginal rights and title. For Nadleh Whut en, there is a particular need to explore local experiences with the referrals process so they can continue building internal capacity to manage and respond in a way that benefits its members. Through a case study of the referrals process related to forestry sector operations on Nadleh Whut en Territory, this research explores how forestry companies and Nadleh Whut en knowledge holders and land users understand the duty to consult. The research uses in-depth interviews with forestry key informants and Nadleh Whut en knowledge holders and land users. Three research questions guide this research: (1) how do forestry companies operating on Nadleh Whut en Territory understand their role within the Aboriginal consultation doctrine?; (2) what factors influence the willingness and capacity of forestry companies operating on Nadleh Whut en First Nation Territory to adhere to Nadleh Whut en First Nation s Land Use Plan and Consultation Policy?; and (3) what constitutes meaningful and appropriate consultation with industry according to Nadleh Whut en knowledge holders and land users? 1.2 Nadleh Whut en First Nation This research is a collaborative endeavour between the Nadleh Whut en First Nation and the School of Environmental Planning at the University of Northern British Columbia. Located in Dakelh (Carrier) Territory on the shore of Nadleh Bunk et (Fraser Lake), Nadleh Whut en is located in the Nechako Plateau, about 140km west of the City of Prince George (Nadleh Whut en First Nation, n.d.). 2

Nadleh Whut en is in the final stages of developing their Land Use Plan, which aims to improve management, protection, and decision-making of environmental, economic, social, and cultural development within their territory. Additionally, Nadleh Whut en has developed a Water Quality Standards Policy and Consultation Policy that contribute to their long-term goal of developing a written Constitution to guide community, lands, water, and resource decision-making (Nadleh Whut en First Nation, n.d.). Once completed, the Consultation Policy will establish procedures for assessing Applications for Activities on Crown Lands within the Nadleh Whut en First Nation Traditional Territory that may have an impact on the Aboriginal title or rights of Nadleh Whut en (Nadleh Whut en First Nation, n.d. A, p. 1). This assessment of Applications for Activities is what is referred to as the referrals process. When proponents, typically government and industry, seek to perform an activity on Nadleh Whut en s Territory, they send a letter and related project information, such as maps and studies, to the Band. This package of information is known as a referral and forms part of the procedural aspect of the duty to consult. In part, sending a referral to a First Nation works to fulfill the Crown s legal duty to consult by initiating communication between proponents and First Nations about activities on their traditional territories. Referrals are sent both to the Band and to individual community land users. Most commonly, individuals with a registered trap line will receive a referral if a proposed activity overlaps with or may impact its use. In theory, First Nations and individual community members receive referrals and provide comment back to the proponent within 30 days. To do so, an internal decision-making process to assess the potential impacts of the proposed activity on Nadleh Whut en s rights and title, as set out in the Standard Operating Procedures, is employed, and proponents are invoiced to compensate for any associated costs. 3

1.3 Language A variety of terms, including First Nation, Aboriginal, and indigenous are used throughout the following chapters for specific purposes, each with a particular meaning. Aboriginal is defined in section 35(2) of the Constitution as including Indian, Inuit and Métis peoples of Canada, and is a term commonly used in Canadian case law and legislation (Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c11). It is therefore used throughout the following chapters in discussions around case law and Aboriginal rights and title. The term First Nation is used frequently throughout and refers to Aboriginal governing bodies, specifically Indian Bands. This term is used when referring to First Nations in a general sense, as opposed to a particular First Nation, such as Nadleh Whut en, in which case a specific name is used. This distinction is consistent with a number of acts (e.g. Treaty Commission Act and Community Charter Act) that use the term First Nation to refer to Indian Bands. Finally, indigenous is used more generally to include all indigenous peoples regardless of legislated identity or place of origin (Krebs, 2014, p.6). It is therefore commonly used to refer to indigenous peoples and groups outside of Canada, where other terms may not be used. 1.4 Overview of the thesis In the following chapters I present a literature review, the methods behind my research, an analysis of my results in a combined results and discussion chapter, and conclude with a discussion of key findings and recommendations. Chapter Two provides an overview of co-management, reviewing various approaches from western and indigenous perspectives. In doing so, this chapter outlines the principles on which co-management is based, provides critique of western co-management approaches, 4

and outlines three factors for successful co-management with indigenous communities. The literature review also outlines the legal history of consultation, accommodation, and consent from the 1990 R v Sparrow decision to the 2016 Gitxaala Nation v Canada case. Chapter Three introduces my approach to research through a discussion of principles for responsible research with indigenous communities and my positionality as a nonindigenous woman engaging in community-based research with Nadleh Whut en. This chapter continues by outlining the case study methodology behind my research and the methods used for participant selection, data collection, and data analysis. Chapter Four, my results and discussion chapter, reviews the key findings of the research as they relate to the three factors for successful co-management outlined in the literature review. These factors, equal capacity, social learning, and indigenous knowledge, structure the chapter. They also facilitate the discussion of sub-themes (e.g., human and financial capacity) as they relate to forestry key informant and Nadleh Whut en knowledge holder and land user experiences with consultation, and the potential for co-management of forestry resources on the Territory. Finally, in Chapter Five I conclude by linking Chapter Four more explicitly to the research questions, and discuss areas of improvement for consultation between First Nations, government and industry. In doing so, I provide recommendations for Nadleh Whut en as they continue to develop their referrals process. 5

Chapter Two - Literature Review 2.0 Co-management: There is more than one approach Collaborative management, also referred to as co-management, is studied in various fields, including public administration (Emerson, Nabatchi & Balogh, 2011), collaborative planning (Bentrup, 2001; Innes & Booher, 2014; Selin & Chavez, 1995), and governance (Emerson et al., 2011; Ansell & Gash, 2007). Within the area of natural resource planning specifically, it is promoted as a means to address issues related to forestry, fisheries, mining and water (von der Porten, Loe & Plummer, 2015; Pomeroy, 1995), such as public policy issues related to watershed management (Koehler & Koontz, 2008), and the overexploitation of fisheries (Pomeroy, 1995). Given the diversity of fields and parties that can be involved in co-management processes, there are many definitions and understandings, although it generally refers to the sharing of power and responsibility between the government and local resource users (Berkes, 2009, p. 2). Often this implies shared decision-making and a desire to reach consensus through a formal arrangement (von der Porten et al., 2015; Tipa & Welch, 2006). Berkes (2009) outlines key principles, or faces of co-management, including the sharing of power, institutional building, and developing trust and social capital. Additionally, it is a process that can be substantial and long, and is an approach to governance. These principles are discussed in more detail in the following section. There are a variety of co-management models, which can be described as occurring on a spectrum, with their use depending on contextual factors such as time constraints, willingness to participate, and level of trust between participating groups (Tipa & Welch, 2006; Pomeroy & Rivera-Guieb, 2006). Berkes, George, and Preston (1991) describe co- 6

management using seven categories that are organized around the level of power sharing. Low on Berkes et al. s (1991) spectrum, which essentially describes non-participation, is informative co-management, where the government simply informs a community of a decision. High on this spectrum is partnership and community control, which involves shared authority and decision-making. In contrast to Berkes et al. (1991), Sen and Raakaer-Nielson (1996) describe a five-category spectrum of co-management approaches that are organized around the role that government and resource users play. The low end of Sen and Raakaer- Nielson s spectrum involves a minimal exchange of information between government and resource users, while the high end of their spectrum (i.e., informative) involves resource users advising governments on decisions they have made. While various models of co-management exist, consultation and cooperation are central to most co-management processes, and Pomeroy and Rivera-Guieb (2006) lay out a fivepoint continuum that describes how collaboration might relate to co-management. Much like Berkes informative level, instructive collaboration involves minimal exchange and is different than centralized management in the sense that mechanisms exist for dialogue with users, but the process itself tends to be government informing fishers on the decisions they plan to make (Pomeroy & Rivera-Guieb, 2006, p. 8). Generally speaking, lower degrees of collaboration, like consultative collaboration, maintain government decision-making and include mechanisms for consultation with resource users, while higher levels of collaboration (e.g., advisory collaboration) involve users advising government on decisions (Pomeroy & Rivera-Guieb, 2006) (see Table 1). Notably, co-management is one form of collaboration and there are many others, such as revenue sharing agreements and community forest agreements. 7

Table 1: Types of co-management Type of co-management Instructive Consultative Cooperative Advisory Informative Description Minimal exchange of information between groups tends to be one-way communication with government informing others on their plans. Consultation mechanisms exist but government makes all decisions. Where groups (ex: government and fishers) have equal decision making authority. Group (ex: fishers) advise government on decisions to be taken, which are endorsed by government. Decision making authority has been delegated to group (ex: fishers) who then inform government of decisions made. Source: Pomeroy & Rivera-Guieb, 2006, p. 8 2.1 Co-management: The principles it is based upon Co-management is embedded within the broader lens of collaborative governance (Berkes, 2009; Emerson et al., 2011), which encompasses planning, policymaking, and management (Ansell & Gash, 2007). Collaborative governance can be defined as the processes and structures of public policy decision making and management that engage people constructively across the boundaries of public agencies, levels of government, and/or the public, private and civic spheres in order to carry out a public purpose that could not otherwise be accomplished (Emerson et al., 2011, p.2). This definition is broader than others, and purposefully encompasses multiple partners and co-management regimes, as opposed to other definitions, which focus on state-initiated arrangements (Ansell & Gash, 2007). In summarizing the specific question of how co-management might function, Berkes (2009) outlines six key concepts, or faces of co-management. First, Berkes (2009) notes that co-management involves the sharing of power. In the context of resource planning, power sharing can prove challenging when resource development falls under government 8

jurisdiction. For example, the West Coast Vancouver Island Aquatic Management Board struggled to exercise their vision of ecosystem based management because it conflicted with the Department of Fisheries and Oceans (DFO) view that they should not be involved with issues of migratory species, which fall under federal jurisdiction (Armitage, Berkes & Doubleday, 2007). Second, Berkes (2009) suggests that it is likely that all parties require institution building for successful co-management, which could mean strengthening existing capacities like developing best practices for fisheries management practices (Armitage et al., 2007), or building new institutions like the Bay of Fundy Marine Resource Centre, aimed at building capacity through supporting the social, economic, and ecological resilience of communities (Bay of Fundy Marine Resource Centre, n.d.; Armitage et al., 2007). Third, Berkes (2009) acknowledges that co-management is about building trust and social capital, wherein trust appears to be a determinant of success in many cases of co-management, as a prelude to building a working relationship (Berkes, 2009, p. 1694). For example, in the case of sea urchin fisheries in Barbados, trust was shaped by building the capacity of authorities to better regulate the fishery. This proved important in reducing illegal fishing, therefore regaining the trust and willingness of fishers and community organizations to participate (Armitage et al., 2007). Emerson, et al. (2011) also include trust as a requirement for creating shared motivation to pursue co-management, and suggest that trust includes elements of mutual understanding, internal legitimacy, and shared commitment. These first three faces highlight the importance of relationships for successful comanagement, particularly the interplay, or two-way feedback, between government policy and local institutions (Berkes, 2009, p. 1693), whereas the following faces focus on procedural aspects. Fourth, Berkes (2009) argues that co-management is a process that can often be substantial and long because it emerges out of extensive deliberation and 9

negotiation, and the actual arrangement itself evolves over time (Berkes, 2009, p. 1694). In particular, co-management evolves over time as a result of problem solving, and the process itself is largely task oriented. Lastly, co-management is an approach to governance, involving a variety of parties who often share responsibility for governance across levels of government, public and private interests, and with overlapping levels of authority (Berkes, 2009). 2.2 Co-management: Perspectives from indigenous communities Co-management becomes increasingly complex with the recognition of Aboriginal rights and title, evoking several issues within the spectrum of co-management previously discussed. First, it is often difficult to maintain the distinction between categories of comanagement, and it can be unclear how to maintain accountability between groups (Tipa & Welch, 2006). For example, there are often discrepancies in how groups define key terms, and in what is considered appropriate protocol for community engagement. In Creyke s (2011) research with the Tahltan, for example, some participants expressed frustration with the current form of engagement, arguing they should be meeting with the Province, not mining companies, regarding the duty to consult. Each model discussed above has a prevalent consultative aspect, yet the notion of consultation itself has been viewed as tokenism by indigenous communities and not considered to be real co-management (Tipa & Welch, 2006, p. 380). Beyond differing on what constitutes authentic engagement, indigenous and non-indigenous groups can have vastly different definitions for what constitutes community (Tipa & Welch, 2006). The Maori in New Zealand, for example have faced challenges with being included in government s broad definition of community, which involves multiple groups within an area, rather than referring to a specific indigenous 10

community. Similar to being referred to as one of many stakeholders, this broad definition facilitates a balance of power that does not prioritize indigenous knowledge (Tipa & Welch, 2006). Finally, and perhaps most significantly, many models of co-management assume government control over natural resources, wherein governments devolve and allocate decision-making authority to other users and stakeholders. This view is contradictory to the view of many First Nations, who hold that their right to self-determination includes the ability to manage resources on their territories, irrespective of how this right has been restricted by colonization (Bowie, 2013; von der Porten et al., 2015). This is illustrated in the fact that many co-management models assume First Nations to be one of many stakeholders, regardless of whether management is occurring on their Territory or not. Not only do research findings in British Columbia reveal that viewing First Nations as stakeholders can set up co-management in ways that do not reflect indigenous approaches and ignore understandings of inherent rights, but the idea of Indigenous peoples as stakeholders conflicts with how some Indigenous peoples see themselves: people who exist in nations that have not been relinquished to colonial governments (von der Porten et al., 2015, p. 135). In response to these issues, Tipa and Welch (2006) introduce a modified categorization of co-management, in which true or real co-management excludes categorizations that are purely consultative. The remaining categories focus on the quality of interaction and include processes that go beyond a continuum extending from central government-based to community-based decision making (Tipa & Welch, 2006, p. 381). In their research with the indigenous Maori people of New Zealand, Tipa and Welch s (2006) co-management framework introduces essential elements to address the values and goals of indigenous communities, including the privileged status of traditional knowledge, and providing a 11

platform where power is negotiated as a way to deal with the power imbalance that typically occurs between government and indigenous groups. Central to this alternative understanding of co-management is the recognition that selfdetermination must be an important element in co-management processes. Co-management, involving aspects of democratization, social empowerment, power sharing, and decentralization has the potential to build Government to Government relations (Pomeroy & Rivera-Guieb, 2006, p. 10), but only if such work affirms identity through wider acknowledgement of traditional knowledge (Tipa & Welch, 2006, p. 388), and provides First Nations with more control over the management of resources in their Territories (Tipa & Welch, 2006). More precisely, indigenous peoples should be acknowledged as self-determining nations, and internal capacity for self-governance should be viewed as important for effective participation. There are a multitude of perspectives and definitions of self-determination that vary based on context, including pre-colonial indigenous governance and the colonial history of the country (von der Porten et al., 2015). However, within international law, as outlined in article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development (United Nations, 2008, p. 4). Article 4 also states Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their international and local affairs, as well as ways and means for financing their autonomous functions (United Nations, 2008, p. 4). In discussing UNDRIP, Minde (2008) recognizes the overlapping issues of human rights, social justice, and selfdetermination in community development, as well as access to and control over resources, 12

sustainability, social cohesion, and cultural identity (Minde, 2008). In a Canadian context, self-determination is described as the right of Indigenous peoples to choose how they live their shared lives and structure their communities based on their own norms, laws, and cultures. It includes the freedom and equal humans right to control one s destiny, usually in the context of communities (Dalton, 2005, p. 1). As section 2.5 will outline in more detail, the need to sustainably manage resources is a concern for First Nations, government and industry. Co-management seeks to address issues of conservation and sustainability where western approaches have not succeeded (Bowie, 2013; Tipa & Welch, 2006), and co-management involving First Nations increasingly occurs at multiple levels with government around various resource issues (e.g., forestry, mining, protected areas etc.) (Bowie, 2013). While some scholars argue that true co-management does not include consultative processes, many perspectives and models do include a consultative approach (Tipa & Welch, 2006). To develop a clearer understanding of the link between co-management and consultation, the following section explores the concept of consultation, and thereby accommodation and consent, as it is laid out in Canadian case law. 2.3 Legal history of consultation, accommodation & consent The level of First Nations participation in decision-making related to lands and resources varies tremendously, from no involvement, to simply being notified, to shared decision-making authority (The First Nations Leadership Council, 2013). The foundation for understanding this participatory relationship between the First Nations and the Crown, formally referred to as consultation, accommodation, and consent, derives from a series of court cases that build on each other to form a doctrine. With a rationale for advancing the processes of reconciliation (Mikisew Cree First Nation v Canada, 2005 SCC 69, Para 4), 13

court decisions lay the foundation for understanding the duty to consult through a series of legal principles. More specifically, these decisions outline when consultation, accommodation, and consent are required, and if so, who the obligation to meet requirements rests on. This section outlines the case law pertaining to consultation, accommodation, and consent, beginning with the 1990 R v Sparrow (Sparrow) decision and ending with the 2016 Federal Court of Appeal s decision in Gitxaala Nation v Canada (Gitxaala). The legal history and judicial perspective of the duty to consult primarily begins with Sparrow, decided in 1990. The Supreme Court of Canada (SCC) made a decision pertaining to section 35(1) of the Constitution Act, 1982, which protects Aboriginal and Treaty rights, stating the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed (Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c11, s. 35). The Court interpreted the significance and implications of section 35(1), concluding that protecting Aboriginal interests is a legal obligation. The Court recognized the presence and distinct ways of life of Aboriginal Peoples prior to European contact, and the rights confirmed in the Constitution form the basis for future reconciliation negotiations as the Crown and First Nations exert their sovereignty (Potes, 2006). As a means of protecting Aboriginal rights, Sparrow put the onus on the Crown to justify potential infringement of Aboriginal and treaty rights through what is known as the Sparrow Test. The test relies on two questions, the first asks if there is an Aboriginal or treaty right, and if so, does the legislation in question (have) the effect of interfering with an existing aboriginal right (R. v. Sparrow, [1990] 1 S.C.R. 1075, Para 12). The second question puts the onus on the Crown and asks if it can justify the infringement (R. v. Sparrow, [1990] 1 S.C.R. 1075). Although Sparrow does not elaborate on consultation, it ensures that Aboriginal rights will be taken seriously by the State (Potes, 2006). 14

In 1997 Delgamuukw v British Columbia (Delgamuukw) became the leading case involving Aboriginal Title, following in the footsteps of the Calder decision in 1973, where the Supreme Court of Canada held that Aboriginal Title existed at the time of the Royal Proclamation of 1763, and is not derived from colonial law. This marked the first time the Canadian legal system acknowledged the existence of Aboriginal title (University of British Columbia, 2009). Delgamuukw further clarified Aboriginal title by outlining five characteristics. First, it is unique, and cannot be fully explained by reference to common law, real property rules, or Aboriginal legal systems. Second, it is inalienable, and cannot be transferred, sold, or surrendered to anyone other than the Crown. Third, its source lies both in the prior occupation of the lands by Aboriginal peoples, and in the relationship between common law and pre-existing Aboriginal law. Fourth, it is held communally, and decisions involving the land are also made collectively. Fifth, and finally, title land involves the right to exclusive use and occupation (First Nations Forestry Council, 2015). Also identified by the SCC in Delgamuukw was the duty to consult Aboriginal peoples, partnered with the duty to accommodate, and in some cases, to gain consent. The Court held that in the case of any infringement on an Aboriginal Right, consultation must always take place, the degree to which depends on the expected impact of the infringement (Potes, 2006). Further, the Court called on the Crown to address Aboriginal Peoples concerns substantially, introducing the notion of accommodation. The decision introduced the concept of consent, outlining that Crown regulations related to hunting and fishing on Aboriginal lands may require it. As will be seen in the Haida Nation v British Columbia (Minister of Forests) case, consent is only appropriate in certain cases when dealing with established rights (Reddekopp, 2013). 15

In 2004 and 2005, a trilogy of cases occurred which are essential to the conversation of consultation and accommodation, particularly the 2004 Haida case. Haida is of particular interest as it speaks to industry involvement in consultation and accommodation processes, and the issue of consultation where claims to Aboriginal title and rights have been asserted, but not yet proven (Potes, 2006; Reddekopp, 2013; Newman, 2014). In this case, the Haida First Nation challenged the approval of the transfer of a Tree Farm License by the BC Minister of Forests on lands for which the Nation had filed a claim for Aboriginal title. The SCC held that the government should have consulted the Haida Nation prior to approving the license, as the Crown must act honourably in its relations with Aboriginal Peoples (Haida Nation v British Columbia, 2004 SCC 73). Additionally, the Court addressed the Crown s legal obligation to consult, concluding that the duty to consult arose before proof and a decision in regards to the Haida Nation s claim. In fact, because Aboriginal rights and title had not yet been established, it was imperative for the government to consult, as to not impact the Nation s interests during their claim. Due to the significant impact of forestry on the Haida Nation, the Supreme Court of Canada ruled that the government needed to consider significant accommodation measures (Newman, 2014). Haida also confirmed that a First Nation does not need to prove infringement for the duty to consult to be triggered, and the duty to consult does not stem from the enactment of section 35(1) of the Constitution Act, 1982, but rather is grounded in the principle of the honour of the Crown (Haida Nation v British Columbia, 2004 SCC 73, Para 3). It is this honour of the Crown, in the context of unproven rights that gives rise to the Crown s duty to consult and accommodate First Nations whenever the Crown contemplates a decision that might affect Aboriginal Rights. Important to note, the judge in Haida clarified that the duty 16

to consult does not extend to a duty to reach an agreement, and that First Nations do not have the ability to veto any decision (First Nations Forestry Council, 2015, p.19). The Haida decision also questioned industry s involvement in consultation and whether they shared an obligation to consult with First Nations. In the initial British Columbia Supreme Court decision, this issue was dismissed based on the sequence established in the Sparrow decision, where consultation was addressed following government s justification of infringement. This decision was overturned by the British Columbia Court of Appeal, which concluded that the Crown s duty to consult was free standing, and not limited to such justification, and that the company who received the new license shared the obligation to consult the Haida Nation (Reddekopp, 2013). The second case, Taku River Tlingit First Nation v British Columbia (Project Assessment Director), arose when the Crown approved a mining company s plan to build a road through a portion of the Taku River Tlingit First Nation s traditional territory. Following an environmental assessment process, in which the Taku River Tlingit First Nation took part, the Province granted approval. In this case, the Crown s duty to consult was triggered, as the government was aware of the Taku River Tlingit First Nation s rights and title claim and the potential negative effects of the road on the Nation s claim. Consequently, the Nation was entitled to more than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation (Taku River Tlingit First Nation v. British Columbia, 2004 SCC 74, Para 4). Ultimately, the Court held that the Province fulfilled its duty to consult and accommodate through the process under the Environmental Assessment Act. Despite not agreeing with the First Nation, the Province did not fail to meet its duty, as there was significant consideration of the Nation s claims (Newman, 2014). 17

Similarly, the third case, Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) (Mikisew), dealt with the location of a road in Treaty 8 lands, extending the doctrine laid out in previous cases to treaty rights (Newman, 2014). The duty to consult was triggered in order to ensure an honourable process for taking up land, and to determine any adverse effects on Aboriginal rights to hunt, fish, and trap. Where impacts exist, the Crown would have to work with the Mikisew Nation in good faith with the intention of addressing their concerns. The SCC also held, it is not correct to move directly to a Sparrow justification analysis even if the proposed measure, if implemented, would infringe a First Nation treaty right. The Court must first consider the process and whether it is compatible with the honour of the Crown (2005 SCC 69, Para 5). In this case, the Court concluded that the Crown did not adequately consult the Mikisew Nation, and that the government s approach, rather than advancing the process of reconciliation between the Crown and the Treaty 8 First Nation, undermined it (Mikisew Cree First Nation v Canada, 2005 SCC 69, Para 4). For the purpose of understanding how consultation, accommodation and consent fit into co-management processes, it is worth synthesizing the duty to consult doctrine. Gitxaala outlines the legal principles pertaining to the duty to consult, which were used in determining that Canada had not fulfilled its duty in regards to the Enbridge Northern Gateway Pipeline project (Gitxaala Nation v. Canada, 2015 FCA 73). The duty to consult, in regards to unproven Aboriginal rights, is grounded in the honour of the Crown, and forms part of the process of reconciliation. The duty is triggered when the Crown has actual or constructive knowledge of the potential existence of Aboriginal rights or title and contemplates conduct that might 18

adversely affect those rights or title (Haida Nation v British Columbia, 2004 SCC 73, Para 35). The depth and intensity of consultation processes occur on a spectrum depending on the strength of the claim and the adverse impacts; the stronger the claim and impact on the claimed right or title, the stronger the depth and richness of consultation processes (Rio Tinto Alcan v Carrier Sekani Tribal Council, 2010 SCC 43, Para 36). The duty to consult rests with the federal, provincial and territorial governments, however, procedural aspects may be delegated to third parties; tribunals that consider resource issues that impinge on Aboriginal interests may be given: the duty to consult; the duty to determine whether adequate consultation has taken place; both duties; or, no duty at all (Rio Tinto Alcan v Carrier Sekani Tribal Council, 2010 SCC 43, Para, 55-56). Project approval is one step of the process, and existing First Nation concerns can be considered in later stages of development. The Crown is able to incorporate the duty to consult into other processes, such as Environmental Assessment. Consultation processes do not provide veto authority over land use, nor does consultation equate to a duty to agree (Haida Nation v British Columbia, 2004 SCC 73, Para 42, 48, 62). Rather, the requirement is a meaningful process. Good faith is required from all parties, and this good faith consultation may reveal a duty to accommodate (Haida Nation v British Columbia, 2004 SCC 73, Para 47). 19

Failure to meet the duty to consult can result in a range of remedies, but most commonly an order is made to carry out consultation processes prior to proceeding (Newman, 2014). With these principles in mind, it is important to note that consent has come to the forefront in discussions around Crown-First Nations relations, particularly due to Tsilhqot in Nation v British Columbia (Tsilhqot in), which marked the first time in Canada s legal history that Aboriginal title was proven by a First Nation outside of a reserve (Fraser Institute, 2016). Aboriginal title can be defined by three sui generis characteristics: it is held communally, it arises from possession before the assertion of British sovereignty, as distinguished from other estates such as fee simple that arise afterward (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 14), and it is inalienable other than by surrender to the Crown (McNeil, 2015, p. 68). The application of these characteristics to the SCC s decision in Tsilhqot in illustrates that this case did not create title; rather it acknowledge its existence as pre-dating European colonization and the assertion of Crown sovereignty in 1846 (McNeil, 2015). As a result of Tsilhqot in, a total of 1700 square kilometers in BC s interior are now Tsilhqot in Nation title land (Fraser Institute, 2016). Consistent with Delgamuukw, the Court opted for a territorial approach in defining Aboriginal title land (McNeil, 2015). As opposed to limiting the land to traditional uses, Tsilhqot in modified Delgamuukw, and respected the authority of First Nations to decide how their land should be used (McNeil, 2015). Consequently, Aboriginal titleholders are able to use their land as they wish, so long as the land is not developed or misused in a way that would substantially deprive future generations of the benefit of the land (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 74). Overall, the SCC found that Aboriginal title includes the rights to decide how the 20

land will be used, the right to enjoy and occupy the land, possess the land, and to proactively use and manage the land, and the right to the economic benefits of the land (Fraser Institute, 2014). Significantly, Tsilhqot in addressed the implications of Aboriginal title on Crown title and the applicability of crown legislation on Aboriginal title land. The SCC asked, What remains, then, of the Crown s radical or underlying title to lands held under Aboriginal title? (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 71). The answer: a fiduciary duty owned by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982 (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 71). Once Aboriginal title has been confirmed, consent becomes the standard, and governments and others must obtain consent prior to use of the land (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 76). If consent is not obtained, the government must justify the intrusion as per section 35 of the Constitution Act, 1982. Three steps are required, (1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown s fiduciary obligation to the group (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 77). Tsilhqot in provided some insight into potential developments that might justify infringement on Aboriginal title lands. They include the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims (Tsilhqot in 21

Nation v British Columbia, 2014 SCC 44, Para 83). Justification requires a compelling public purpose and must be consistent with the Crown s fiduciary duty to the Nation. It was also determined that laws of general application do apply to Aboriginal title lands (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 101), although this authority to regulate is limited by section 35 of the Constitution Act, 1982, and federal power over Indians and Lands reserved for the Indians (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 103). In assessing the applicability of the Forestry Act on Aboriginal title land, the SCC determined that it does not apply; the justification being that the beneficial interest in the land vests in the aboriginal group (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 116), and the timber no longer falls under the definition of Crown timber. Important to note, the Forestry Act remains applicable to unproven Aboriginal title land, whether a claim exists or not. It is anticipated that the Tsilhqot in decision will have significant implications on provincial and federal governments, and resource development in the province more generally. Tsilhqot in, for example, is explicit in the applicability of consent on future Aboriginal title lands, stating that once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 92). Given this uncertainty, and the potential applicability of legislation on Aboriginal title land, it is clear why the SCC stressed that governments and Aboriginal groups work cooperatively (Tsilhqot in Nation v British Columbia, 2014 SCC 44, Para 105). 22

2.4 Aboriginal consultation, accommodation & consent: Flaws in a centralized approach to consultation in resource management The context in which resource management operates has changed significantly as a result of court decisions related to Aboriginal consultation, rights, and title, and a subsequent shift in political priorities (Bowie, 2013). First Nations now have the established right to be part of decision-making processes regarding their Territories, and are increasingly involved in the management of resources, which was not always the case in the past. This section explores how government and industry, specifically the forestry sector, approach Aboriginal consultation, and the following section presents co-management as an alternative approach to the bureaucratic and centralized management of natural resources (Yeboah-Assiamah, Muller & Domfeh, 2016). In British Columbia, most forestry occurs on Crown, un-ceded land that is leased to forestry operators under government license (Wyatt, 2008). As a result, forestry significantly impacts First Nations territories. For example, about 80% of Nadleh Whut en First Nations Territory is impacted by forestry activities, resulting in the degradation of forest conditions, decline in wildlife, and the reduction of available harvestable resources for community members (Nadleh Whut en First Nation Land Use Plan, n.d.). While this management system was established without First Nations involvement, who were excluded from management practices (Wyatt, 2008), the importance and benefit of First Nations involvement in forestry management is increasingly recognized. Many industry operators have expressed the value of First Nations involvement, including the potential for business opportunities, improved longterm access to resources, and improved company image (National Aboriginal Forestry Association, 2005). Other benefits include the ability to promote corporate social 23

responsibility (CRS) and to adopt certification standards, like the Sustainable Forest Initiative, which requires First Nations involvement in management processes, and CSR, emphasizing the social, economic, and environmental aspects of management, recognizes the importance of First Nations relations (National Aboriginal Forestry Association, 2005). Following significant court decisions regarding Aboriginal consultation, the Canadian government has recognized that an awareness of the duty to consult and its application must become part of the government s daily business (Government of Canada, 2011, p. 7). The government recognizes that their duty stems from a variety of legal contexts, including case law, and specific requirements set out in statues and regulations, provisions in land claim agreements, self-government agreements, and consultation agreements (Government of Canada, 2011). Consultation processes vary depending on the department, First Nation, and the proposed project. However, generally speaking Canada follows a whole of government approach, which involves integrating consultation into existing mechanisms and processes. Consultation processes for major projects, for example, are integrated into the environmental assessment and regulatory approval processes (Government of Canada, 2011). While the duty to consult rests with federal, provincial, and territorial governments, consultation processes like community meetings can be delegated to third parties (Haida Nation v British Columbia, 2004 SCC 73, Para 53). Delegating processes to industry is a common and desired practice for government, as industry proponents are often best positioned to accommodate an Aboriginal group for any adverse impacts on its potential or established Aboriginal or Treaty rights, for example, by modifying the design or routing of a project (Government of Canada, 2011, p. 19). Industry-led consultation and accommodation varies greatly. Some companies see value in consulting and working with First Nations, while others resent the responsibility 24