THE LAW OF CANADA IN RELATION TO UNDRIP

THE LAW OF CANADA IN RELATION TO UNDRIP Although the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is not a binding legal instrument and has never been ratified as a treaty would be, the federal government did issue a statement endorsing it 2010. In doing so, it made clear reference to Canada s constitutional framework which the government described as the cornerstone of our efforts to promote and protect the rights of Aboriginal Canadians, and which the Supreme Court of Canada has used to reconcile asserted aboriginal rights with other societal interests. Specifically, in the 2010 Speech from the Throne the Government stated: We are a country with an Aboriginal heritage. A growing number of states have given qualified recognition to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada s Constitution and laws. 1 And in a statement issued at the time it was endorsed, the Government said this: In 2007, at the time of the vote during the United Nations General Assembly, and since, Canada placed on record its concerns with various provisions of the Declaration, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties. These concerns are well known and remain. However, we have since listened to Aboriginal leaders who have urged Canada to endorse the Declaration and we have also learned from the experience of other countries. We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework. Aboriginal and treaty rights are protected in Canada through a unique framework. These rights are enshrined in our Constitution, including our Charter of Rights and Freedoms, and are complemented by practical policies that adapt to our 1 http://www.speech.gc.ca/eng/media.asp?id=1388

evolving reality. This framework will continue to be the cornerstone of our efforts to promote and protect the rights of Aboriginal Canadians 2 The Supreme Court of Canada has been clear both before and after the UNDRIP was endorsed - that our constitutional framework does not give aboriginal groups a veto right in respect of asserted rights and title. Instead, the Court has imposed other requirements to achieve reconciliation while still recognizing government s right to govern. The leading case is Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73 where the Supreme Court of Canada made clear that aboriginal groups with asserted rights and title do not have a veto, but the Crown must consult and, where appropriate, accommodate aboriginal groups in respect of decisions that may affect their interests. Other court decisions at all levels both before and after the endorsement of the UNDRIP have confirmed these principles. Examples include the following. Case Moulton Contracting Ltd v British Columbia, 2013 SCC 26 (Supreme Court of Canada) Para. Quote (emphasis added) 29 The duty to consult is triggered "when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it": Haida Nation, at para. 35. The content of the duty varies depending on the context, as it lies on a spectrum of different actions to be taken by the Crown: Haida Nation, at para. 43. An important component of the duty to consult is a requirement that good faith be shown by both the Crown and the Aboriginal people in question: Haida Nation, at para. 42. Both parties must take a reasonable and fair approach in their dealings. The duty does not require that an agreement be reached, nor does it give Aboriginal peoples a veto: Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, 2 http://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142

[2004] 3 S.C.R. 550 (S.C.C.), at paras. 2 and 22; Haida Nation, at para. 48. Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 (Supreme Court of Canada) 14 The First Nation argues that in exercising his discretion to approve the grant the Director was required to have regard to First Nation s concerns and to engage in consultation. This is true. The First Nation goes too far, however, in seeking to impose on the territorial government not only the procedural protection of consultation but also a substantive right of accommodation. The First Nation protests that its concerns were not taken seriously if they had been, it contends, the Paulsen application would have been denied. This overstates the scope of the duty to consult in this case. The First Nation does not have a veto over the approval process. No such substantive right is found in the treaty or in the general law, constitutional or otherwise. Long Plain First Nation v Canada (Attorney General), 2012 FC 1474 (Federal Court) 68 The Supreme Court of Canada, in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (S.C.C.), has provided significant guidance as to the scope of the duty to consult. In brief, the scope must be assessed on a case-by-case basis. The more serious the claim by an aboriginal nation, the greater is the duty to consult. I repeat what the Chief Justice, for the Court, wrote at paragraphs 24, 27 and 43 to 48:... 48 This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal "consent" spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. Tzeachten First Nation v Canada (Attorney General), 2008 FC 928 (Federal 68 The reciprocal duty incumbent upon Aboriginal peoples was elaborated upon in Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, 178 D.L.R. (4th) 666 (B.C. C.A.) at para. 161 as a duty to:

Court) (...) express their interests and concerns once they have had an opportunity to consider the information provided by the Crown, and to consult in good faith by whatever means are available to them. They cannot frustrate the consultation process by refusing to meet or participate, or by imposing unreasonable conditions (...) 72 The consultation "process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim" (Haida Nation, above, at para. 48) and at some point a government decision will have to be made. Louis v British Columbia (Energy, Mines & Petroleum Resources), 2011 BCSC 1070 (BC Supreme Court) 222 226 I also cite the following passages from Woodward, supra: 5 1900 Aboriginal groups must also engage in the consultation process in good faith. As a general rule, this means sharing relevant information and discussing the proposed decision or course of action with an open mind about the likely impact of the decision and the possible ways of accommodating their s. 35 rights. If an aboriginal group's only objective is to prevent a particular project from being approved, the courts will not normally consider this to be a good-faith effort, because the Supreme Court of Canada has emphasized that the consultation process generally does not give aboriginal groups a veto over Crown decision-making. [Footnotes omitted. They refer to Haida, supra, at para. 48 and Mikisew, supra, at paras. 65-66.] Stellat'en's correspondence for example, the statement by former Chief Mabel Louie in her April 15, 2008 letter: "it should not be assumed that it [the proposed expansion] will be allowed to proceed" seems to indicate that members were under the impression that they have a form of veto power over the Mine's continued operation. They do not. The existing mineral leases and claims provide otherwise. And the caselaw (namely, Haida, supra, at para. 48) provide otherwise. What is required is a process of 'give and take'. Hupacasath First Nation v. 98 Emphasizing that the process does not give aboriginal groups a veto over what can be

British Columbia (Minister of Forests), 2005 BCSC 1712 (BC Supreme Court) done with land pending final proof of the claim, the Chief Justice said [in Haida] that what is required is "a process of balancing interests, of give and take (para. 48). Consultation requires good faith on both sides, which does not preclude hard bargaining. Aboriginal claimants must not frustrate the Crown's reasonable efforts, nor should they take unreasonable positions to thwart government in its consultation attempts: Haida Nation at para. 42. The standard is reasonableness, not perfection (para. 62). The right to be consulted is not a right to veto (para. 48). What is required is a process of balancing interests, of give and take (para. 48).