The Duty to Consult Aboriginal People in Canada

The Duty to Consult Aboriginal People in Canada Shifting Domestic and International Obligations with Increasing Environmental Importance Luke Brisebois Supervisor: Joanna Cornelius JUCN21 Environmental Law in an International Context

Abstract The Canadian Government s duty to consult Aboriginal people is currently a distinctly domestic legal issue. However, the intertwined relationship between Aboriginal rights, environmental regulation and resource development has resulted in a complex and multifaceted relationship between aboriginal and environmental law in Canada. This relationship is further complicated by the duty to consult s connection to environmental regulation, resource development, and ecological conservation, and guarantee that its implementation will take on an increasingly international character in the years to come. The purpose of this paper is to present the duty to consult Aboriginal peoples in Canada not simply within the context of domestic aboriginal law, but rather within the broader context and framework of international environmental law. The current state of the law on the duty to consult Aboriginal people in Canada will be defined, its overlap with environmental issues and regulation will be explored, and the duty will be further examined from an international perspective. In the end, a modest procedural change within the doctrine of the duty to consult Aboriginal peoples will not only lead to better and more uniform implementation of this duty domestically, but it will also better align with the Canadian Government s obligations within the global community and foster reconciliation between all Canadians. 2

Table of Contents Table of Abbreviations... 4 1. Introduction... 5 1.1 Objective... 7 1.2 Methodology & Limitations... 7 1.3 Overview... 9 2. The Duty to Consult... 9 2.1 Purpose of the Duty... 9 2.2 Triggering the Duty... 10 2.3 The Depth of Consultation... 11 2.4 Overlap with Environmental Law... 13 3. Aboriginal People and the Environment... 16 4. Alignment with UNDRIP... 17 5. Alignment with IEL Agreements... 21 6. Conclusion... 22 Bibliography... 24 Primary Sources... 24 Secondary Sources... 25 3

Table of Abbreviations COSEWIC EA EIA IEL FPIC NEB PIC SCC TRTFN UNFCCC UNDRIP Committee on the Status of Endangered Wildlife in Canada Environmental Assessment Environmental Impact Assessment International Environmental Law Free, Prior and Informed Consent National Energy Board Prior Informed Consent Supreme Court of Canada Taku River Tlingit First Nation United Nations Framework Convention on Climate Change United Nations Declaration on the Rights of Indigenous Peoples Environmental Assessment is the term used domestically within Canada. For the purposes of this paper, Environmental Assessments and Environmental Impact Assessments should be considered equivalent. Outside of the introduction, EIA will be used throughout the paper to denote all assessments of this nature 4

1. Introduction The Inuit Hamlet of Clyde River is located in Nunavut territory, part of Canada s isolated arctic region, along the northeast coast of Baffin Island and separated from Greenland by the arctic waters of Baffin Bay. Clyde River has a treaty with the Government of Canada that contains a number of defined rights, including the right to harvest certain marine mammals. 1 In 2011, Petroleum Geo-Services Inc. applied to the National Energy Board (NEB) for permission to complete seismic testing off of the northeast coast of Baffin Island for the purpose of oil and gas exploration. 2 The NEB is a governmental administrative body with the authority to act on behalf of the Government of Canada. In this capacity, the NEB is responsible for granting permission for projects of this nature. As such, the duty to consult Aboriginal communities regarding these projects and their potential impacts on Aboriginal rights falls within the scope of the NEB s authority as they act on behalf of the Canadian Government. 3 Clyde River opposed the seismic testing proposed by Petroleum Geo-Services Inc. and contended that the testing would infringe upon their treaty rights, namely their treaty right to harvest marine mammals; nevertheless, the NEB approved the project. 4 While approving the project, due primarily to the infringement of these treaty rights, the NEB was of the opinion that they had a duty to complete medium depth consulting with Clyde River. 5 However, Clyde River contended that a deeper level of consultation was required of the NEB. They initiated legal action that led to the Supreme Court of Canada (SCC) hearing the case and issuing its decision in July 2017. In its decision, the SCC determined inter alia that the depth of consultation required of the NEB was deep consultation. 6 The duty to consult Aboriginal peoples is often closely related to environmental considerations and issues because Aboriginal rights are so often linked directly to the 1 Clyde River (Hamlet) v Petroleum Geo-Services Inc [2017] SCC 40 at para 2 [Clyde River]. 2 Ibid at para 3. 3 Ibid at para 29. 4 Ibid at para 9. 5 Clyde River (Hamlet) v TGS-NOPEC Geophysical Co ASA [2015] CAF 179 at para 31. 6 Clyde River supra note 1 at para 43. 5

environment. Clyde River s Aboriginal right to harvest marine mammals is a perfect example of an Aboriginal right directly related to the environment. Naturally, consultation is often linked with the International Environmental Law (IEL) principles of co-operation, notification, free, prior and informed consent (FPIC), and environmental impact assessments (EIA). The required depth of the duty to consult Aboriginal peoples is proportionate to the strength of the case supporting the Aboriginal right in question and the seriousness of the potential adverse effect upon the claimed right. 7 Thus, the content of the duty to consult Aboriginal groups is also closely related to environmental considerations and impacts. Further, the seriousness of the potential adverse impact is often based on evidence consisting of scientific data and environmental science. 8 In the Clyde River decision, the Environmental Assessment (EA) completed as part of the project approval process indicated that seismic testing could change the migration routes of marine mammals and increase their risk of mortality, thereby affecting traditional harvesting of marine mammals including bowhead whales and narwhals, which are both identified as being of Special Concern by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). 9 However, the NEB concluded, the testing was unlikely to cause significant adverse environmental effects given the mitigation measures that the proponents would implement. 10 Based on the evidence, the Court then concluded that the duty owed to the Inuit Hamlet of Clyde River fell at the deepest end of the spectrum within the duty to consult. 11 Although the duty to consult Aboriginal peoples arose as a domestic matter contained within the boarders of Canada, it has recently taken on a degree of international importance. The Government of Canada recently promised to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 12 Further to this, the intertwined relationship between Aboriginal rights, environmental regulation and resource development lends additional international character to these complex and multifaceted issues. While the duty to 7 Haida Nation v British Columbia (Minister of Forests) [2004] SCC 73 at para 39 [Haida Nation]. 8 Clyde River supra note 1 at para 15. 9 Ibid. 10 Ibid. 11 Ibid at para 44. 12 United Nations Declaration on the Rights of Indigenous Peoples, UNGAOR, 61 st Sess, Supp No 49, UN Doc A/RES/61/295 (2007) online: <www.un.org/esa/socdev/unpfii/documents/drips_en.pdf> [UNDRIP]. 6

consult Aboriginal people within the context of Canadian aboriginal law is presently a distinctly domestic issue, its relationship to environmental regulation, resource development, and ecological conservation guarantee that its implementation will take on an increasingly international dimension in the years to come. The increased international importance of the duty to consult Aboriginal peoples also further fits into the push for an increasingly global effort to cooperate in the context of IEL agreements. This paper will explore the evolving relationship between the duty to consult Aboriginal people in Canada and environmental law, with a focus on the expanding international character of this complex and multifaceted relationship. 1.1 Objective The purpose of this essay is to present the duty to consult Aboriginal peoples not simply within the context of domestic Canadian aboriginal law, but rather within the broader context and framework of IEL. In order to do so, due to the nature of the Canadian common law legal system, the current state of the law in regard to the duty to consult Aboriginal peoples must be defined. It will also be important to examine the unique relationship that Aboriginal people have with the natural environment in order to provide further context to the complex legal relationship between Aboriginal and environmental law not only within Canada, but also in the international context. The duty to consult Aboriginal peoples not only fits within the general principles of IEL, but it also fits within specific international agreements Canada is already a party to, and through better domestic implementation of the duty to consult, Canada can better achieve its environmental obligations within the international community. 1.2 Methodology & Limitations This essay will use a comparative method to contrast the Government of Canada s domestic legal obligations with its IEL obligations and use an analytical method to draw conclusions based on these comparisons. Analysis will occur throughout the paper, but before using the comparative method, this paper will take a descriptive approach to synthesize the current state of Canadian law in regard to the duty to consult. This will provide the reader with a general overview of the legal rules that define the duty to consult Aboriginal peoples within Canada before shifting to an international context. Finally, the central conclusion of this paper 7

puts forward a normative argument with a claim that Canadian courts should adopt a procedural shift to a presumptively deep level of consultation within the legal test for the Canadian Government s duty to consult Aboriginal peoples. A presumptively deep level of consultation can then be rebutted through scientific evidence. Not only will this presumption ensure that proper consultation efforts are discharged, but it will also incorporate increased environmental protection and better align with Canadian IEL obligations. However, the international context and broad level approach to this essay does place some limitations on the subject matter. Current research in this area tends to focus primarily on the domestic implementation of the duty to consult within the practice of Canadian aboriginal law. Further to this, the definition and content of this duty are still being developed within the Canadian courts and continue to evolve as new common law decisions are issued. While there is a growing emphasis on the duty to consult Aboriginal peoples, and there is a natural connection between aboriginal and environmental law, the synthesis between these two areas of law within Canada is still in its infancy. As such, the broad level approach of this paper, combined with the ongoing development of these legal principles, simply will not allow for an in-depth analysis of some of the more complex issues within such multifaceted subject matter. Furthermore, this is essay does not claim to provide an Indigenous perspective on these issues; no doubt Indigenous views and perspectives are of central importance to this subject. Nonetheless, this essay will aim to add to the growing legal scholarship in Canada that focuses on the intersection between aboriginal and environmental law by developing a normative argument based on its comparative and analytical analysis. This normative argument for a shift in the procedural nature of the duty to consult Aboriginal peoples is also aimed to correspond with The Truth and Reconciliation Commission (TRC) of Canada s report that has indicated that despite the wrongs committed in the past, Canada has a rare second chance to seize a lost opportunity for reconciliation. We live in a twenty-first-century global world. At stake is Canada s place as a prosperous, just, and inclusive democracy within that global world. 13 13 The Truth and Reconciliation Commission of Canada, The Final Report of the Truth and Reconciliation Commission of Canada, vol 6 (Montreal & Kingston: McGill-Queen s University Press, 2015) at 3 [TRC]. 8

1.3 Overview In order to achieve its aims, this essay will first examine the domestic development of the duty to consult Aboriginal peoples within the Canadian legal system in order to provide a foundation from which further analysis can be based upon. Next, it will consider the unique relationship that Aboriginal people have with the natural environment in order to provide further background to the issue before shifting to an international lens. The international focus of this paper will primarily consider how the duty to consult interacts with UNDRIP before briefly examining specific IEL agreements such as the Stockholm Declaration, the United Nations Framework Convention on Climate Change (UNFCCC), and the Paris Agreement, and assess how the duty to consult fits within these agreements. Finally, this paper will propose a modest procedural change within the duty to consult Aboriginal peoples that will not only lead to better and more uniform implementation of this duty domestically, but will also better align with the Government of Canada s obligations within the global community and foster reconciliation between Canadians. 2. The Duty to Consult Before examining how the duty to consult Aboriginal peoples relates to environmental issues, it is first necessary to understand the purpose of the duty to consult, as well as the current state of the law within the Canadian legal system. 2.1 Purpose of the Duty The duty to consult Aboriginal peoples arose both out of the Crown s unilateral assertion of sovereignty over Aboriginal Nations within Canada, and Section 35(1) of the Constitution Act, 1982. 14 Further to this, the aim of the duty to consult is reconciliation between the peoples of Canada. 15 As stated by McLachlin, C.J. in Haida Nation: This court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty [Reconciliation] is a process flowing from rights guaranteed by s. 14 Felix Hoehn, Reconciling Sovereignties: Aboriginal Nations and Canada (Saskatoon: University of Saskatchewan Native Law Center, 2012) at 51. 15 Haida Nation, supra note 7 at para 32. 9

35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown s duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people With this assertion of sovereignty arose an obligation to treat Aboriginal peoples fairly and honourably, and to protect them from exploitation. 16 In other words, by taking control of the land and resources that were once in the control of Aboriginal peoples, the Crown assumed a duty to act honourably. 17 Therefor, any time the Government of Canada intends to infringe upon Aboriginal rights or title, Canada has a constitutionally required duty to consult with the affected Aboriginal group(s) in order to maintain the honour of the Crown. 18 2.2 Triggering the Duty The current law on the duty to consult Aboriginal peoples is loosely divided into two rather broad components. First, a legal test that triggers the duty to consult, and second, the scope and content of the triggered duty. The triggering test was succinctly broken into three parts in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council as: (1) the Crown s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. 19 The first part of this test has a generally low threshold and will be satisfied even where the Crown is uncertain as to whether a claim for Aboriginal rights or title will be brought forth. 20 Despite the low initial threshold, there are still certain exceptions to the first part (1) of the test. For example, in a case where a modern treaty outlines the process of consultation, the treaty will usually take priority and the constitutional duty to consult will not be triggered. 21 The second part (2) of the test is satisfied fairly easily and includes scenarios where contemplated Crown conduct is in the preliminary or strategic planning stages. 22 The third part (3) of the test will be satisfied where there is a demonstration of a causal connection 16 Ibid. 17 Hoehn, supra note 14 at 52. 18 Ibid. 19 [2010] SCC 43 at para 31 [Rio Tinto]. 20 Haida Nation, supra note 7 at para 37. 21 Dwight Newman, Revisiting the Duty to Consult Aboriginal Peoples (Saskatoon: Purich Publishing Ltd., 2014) at 43. 22 Haida Nation, supra note 7 at para 76. 10

between the proposed Crown conduct and the potential adverse impact on an Aboriginal claim or right. 23 However, there are exceptions to this rule as well. For example, the duty to consult will not be triggered as a result of past government conduct that has caused adverse impacts on Aboriginal rights: the duty to consult is not a tool to right historical wrongs. 24 Given the nature of each element of the test that triggers the Canadian Government s duty to consult Aboriginal peoples, the duty to consult is triggered with relative ease. 25 It is important to understand the test that triggers the duty to consult because it must be satisfied as a precondition to assessing the depth of the duty, and this depth forms part of the normative conclusion of this paper. It is also important because part (1) Crown knowledge, and part (3) an adverse effect, essentially assess the same factors as that of the test for the depth of the duty to consult. Ultimately though, the triggering test will remain unaffected by any changes to the depth of consultation test. 2.3 The Depth of Consultation The second broad component of the duty to consult Aboriginal peoples, which arises after the duty has initially been triggered, consists of the scope and content of the duty. The scope of the duty is a measure of the required depth of consultation. The content of the duty involves the actual methods and practices implemented by the Government to adequately meet the required depth of consultation. Due to its large scope, the content of the duty to consult is best left as a separate subject and will not be a focus of this paper. For the purpose of this paper however, it may be useful to understand that where the scope or depth of the duty is considered low or shallow, the content of the duty may be as simple as notifying the Aboriginal group of the potentially infringing activity. 26 Where as if the scope or depth is deep, the content of the duty will be more onerous and may include alterations to the government activity or 23 Rio Tinto, supra note 19 at para 51. 24 Ibid at para 45. 25 Newman, supra note 21 at 56. 26 Haida Nation, supra note 7 at para 37. 11

compensatory accommodations. 27 Part of the normative conclusion of this paper will focus on the scope or depth of the duty to consult. The SCC elucidated the framework of the scope of the duty to consult in Haida Nation: It may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. 28 The test for the depth of the duty to consult therefore breaks down into two components in which the duty will be proportional to: (1) the strength of the aboriginal right asserted, and (2) the seriousness of the infringement of that right. Both the type of right and the strength of the right can vary. An Aboriginal right such as a right to hunt or fish in a certain area can be legally recognized by the courts, can be granted as part of a treaty, or, if not recognized by the Government of Canada, can be asserted by an Aboriginal community. Aboriginal title is a separate type of right that grants exclusive possession to land, as well as the rights associated with exclusive possession such as the rights to the benefits and enjoyment of that land, subject to certain limitations. 29 Just like Aboriginal rights, Aboriginal title can either be legally recognized, or alternatively it can be unrecognized but asserted by the Aboriginal group. For the purpose of the first part (1) of the depth of the duty to consult test, legally recognized aboriginal right or a legally recognized aboriginal title, whether it is identified through a treaty or otherwise, is considered strong. A strong right or title is an indication that a deep level of consultation will be required but still depends on the second element (2) of the test the seriousness of the infringement of that right. A strong prima facie asserted Aboriginal right would also likely give rise to a deep level of consultation, but would again depend on the second element (2) of the test. A strong prima facie asserted right or title is one that has not yet been legally recognized, but one that the courts believe would be recognized based on the evidence presented if the specific issue of Aboriginal right or title were to be brought before 27 Ibid. 28 Ibid at para 39. 29 Tsilhqot in Nation v British Columbia [2014] SCC 44 at para 73-76 [Tsilhqot in]. 12

the court. For the purpose of the depth of the duty to consult test, an asserted strong prima facie right is virtually equivalent to a legally recognized Aboriginal right or title. 30 The second element (2) of the test involves the seriousness of the infringement of the Aboriginal right or title. According to Dwight Newman, this element has not attracted much attention within the courts as to how it is defined and what circumstances may increase the complexity of the legal analysis. 31 However, one important factor that has been identified at this stage of the test is whether the effects are permanent or transitory. Permanent or irreversible effects are more likely to give rise to a deeper level of consultation. 32 2.4 Overlap with Environmental Law The Government of Canada s duty to consult Aboriginal people has a natural overlap with environmental law. The duty arises primarily as a result of proposed resource or infrastructure projects. These projects inherently include environmental considerations, and these environmental considerations often naturally overlap with Aboriginal rights. In Haida Nation, the province of British Columbia had previously issued licences for tree farming to logging companies within traditional Haida territory. 33 At issue in the case was whether the Province could transfer these licenses from one logging company to another without consulting the Haida people. 34 The Haida Nation decision was the first case to describe the spectrum of the depth of the duty to consult, and significantly contributed to the current state of the law. The Court found that the duty to consult had been triggered, and also determined the depth of consultation. 35 The SCC ruled that although the Haida people did not have legally recognized title, they had a prima facie case in support of Aboriginal title and a strong prima facie case for the Aboriginal right to harvest red cedar. 36 In assessing the seriousness of the infringement, the Court reviewed evidence presented by the First Nation that 30 Haida Nation, supra note 7 at para 44. 31 Newman, supra note 21 at 96. 32 Xats ull First Nation v Director, Environmental Management Act British Columbia Environmental Appeal Board Deciision No. 2006-EMA-006(a). 33 Supra, note 7 at para 3. 34 Ibid at para 6. 35 Ibid at para 6 and 67. 36 Ibid at para 71. 13

indicated that the red cedar had been an important part of the Haida culture and economy, that old-growth forests are of limited supply, that the forests take generations to mature, and that these forests virtually cannot be replaced. 37 The SCC also ruled on the seriousness of the infringement in question by indicating that the transfer of the licences might, in effect, have a potentially serious impact on both Aboriginal rights and title. 38 However, the Province of British Columbia did indicate that the licence proponent would use variable retention logging methods that would reduce environmental impacts and support natural reforestation. 39 Obviously this decision has at its core the central issues of Aboriginal rights and title, but it is also a clear example of the overlap between the duty to consult and environmental law. A similar set of circumstances arose in the Tsilhqot in decision in 2014. The people of the Tsilhqot in Nation have lived in a remote valley within the Rocky Mountains of British Columbia for centuries. 40 Like many other Aboriginal groups, the Tsilhqot in Nation had not entered into a treaty with the Government of Canada well into the first century following confederation in 1867. 41 In 1983, Canada granted a tree-harvesting licence to a logging company within the historical territory of the Tsilhqot in people. 42 The First Nation objected to the granting of the licence and asserted title over the land, but from that time up to 2014, they were unable to receive legal recognition of title from the Canadian Government. 43 The title claim, as well as the question of whether additional logging licences would infringe upon that claim, was brought before the SCC. The Court determined that the Tsilhqot in Nation had a strong prima facie case for title. 44 In addition, forecasted clear-cut logging practices were expected to interfere with the Aboriginal rights to hunt and trap in the area. 45 Not only would clear-cut logging interfere with the Aboriginal rights, but the intrusion on Aboriginal title was also considered significant and the duty to consult was therefore placed on the deep end of the 37 Ibid at para 2, 7, and 72. 38 Ibid at para 76. 39 Haida Nation v British Columbia (Minister of Forests) [2000] BCSC 1280 at para 38 [Haida BSCS]. 40 Tsilhqot in, supra note 29 at para 3. 41 Ibid at para 5. 42 Ibid. 43 Ibid at para 8. 44 Ibid at para 93. 45 Xeni Gwet in First Nations v British Columbia [2007] BCSC 1700; Tsilhqot in Nation v British Columbia 2007 BCSC 1700 at para 26 [Tsilhqot in BCSC]. 14

spectrum. 46 Again, this case demonstrates a clear connection between Aboriginal rights and title, the duty to consult, and environmental law. Similarly, a case involving Taku River Tlingit First Nation (TRTFN) concerned an industry proponent who sought to reopen a mine in northwest British Columbia that had not been in operation for decades. 47 A primary issue in the case was the existence and depth of the duty to consult with TRTFN regarding a new access road that traversed a length of 160km within their traditional territory. 48 TRTFN had asserted title over the area and the Court ruled that they had a prima facie case for Aboriginal title, as well as rights to traditional activities including the right to hunt, fish, and gather food. 49 The SCC ultimately stated that the potential impacts of the access road on TRTFN s rights were serious. 50 Again, this case clearly involved the overlap between the duty to consult Aboriginal people and environmental law. As a final example to illustrate this relationship, it is possible to look at the decision in Mikisew Cree First Nation v Canada (Minister of Canadian Heritage). 51 The Mikisew Cree First Nation has a number of recognized traditional Aboriginal rights on treaty land in northern British Columbia, Alberta, Saskatchewan, and a portion of the south edge of the Northwest Territories. 52 In 2001, the Government of Canada approved an 118km winter road that ran through Mikisew Cree Nation treaty land without consulting the Mikisew Cree Nation. 53 The Mikisew Cree Nation protested the alignment, and as a result, the proposed roadway was modified to align adjacent to, and outside of, the Mikisew territory, but the Canadian Government again failed to consult with the Nation. 54 Although the proposed roadway would run outside the boundary of their treaty territory, the Mikisew Cree Nation claimed that it would still negatively impact the hunting rights of those who trapped in the area. 55 In support 46 Tsilhqot in, supra note 29 at para 93. 47 Taku River Tlingit First Nation v British Columbia (Project Assessment Director) [2004] SCC 74 at para 3 [Taku River]. 48 Ibid at para 1. 49 Ibid at para 30. 50 Ibid at para 31. 51 [2005] SCC 69 [Mikisew Cree]. 52 Ibid at para 2. 53 Ibid at para 3. 54 Ibid. 55 Ibid. 15

of this claim, the Mikisew presented evidence from a draft EIA, which acknowledged that the proposed roadway could potentially result in a diminution in quantity of the Mikisew harvest of wildlife within the treaty area adjacent to the road. 56 The potential reduction in harvest could be caused by fragmentation of habitat, changes to migration patterns, increased poaching due to access from the road, and wildlife mortality as a result of collisions with motor vehicles. 57 A witness from Parks Canada also indicated at trial that certain studies have shown roadways impact wildlife patterns. 58 The Aboriginal rights and title at issue in Haida Nation, Tsilhqot in, Taku Riveri, and Mikisew Cree, and the duty of the Canadian Government to consult when these are infringed, provide clear examples of how the duty to consult Aboriginal people overlaps with environmental law. The duty arises during proposed natural resource projects and proposed infrastructure projects, and often includes EIAs. For precisely these reasons, the duty to consult has a natural overlap with IEL. This overlap is compounded by the fact that the duty is carried out between the Canadian Government and First Nations whom the Government of Canada asserted de facto sovereignty over at the time of confederation. 3. Aboriginal People and the Environment Aboriginal groups can be categorized in a general sense to have a healthy respect for the environment. 59 However, care must be taken when attempting to generalize about the belief systems of hundreds of distinct Aboriginal groups in North America. 60 There are over 600 recognized First Nations in Canada, including Metis and Inuit people, as well as many non-status (not legally recognized) indigenous populations across the country. 61 In Canada, 56 Ibid at para 44. 57 Ibid. 58 Ibid. 59 Randy Kapashesit and Murray Klippenstein, Aboriginal Group Rights and Environmental Protection (1991) 36 McGill LJ 925 at 926. 60 Ibid at 929. 61 Risa Schwartz, Realizing Indigenous Rights in International Environmental Law: A Canadian Perspective (2016) CIGI Papers No 109 October 2016 at 1. 16

Indigenous people across the country have a unique and special interest in the environment that is rooted within a special spiritual connection. 62 However, Aboriginal environmental belief systems share a number of features which can be identified and considered. These include a lack of division between humans and the rest of the environment, a spiritual relationship with nature, concern about sustainability, attention to reciprocity and balance, and the idiom of respect and duty (rather than rights). 63 Further to this, Aboriginal ethics and philosophy lack the European tendency to pose nature in distinct opposition to humans. 64 For example, in the Cree language there is no word corresponding to nature, only the word pimaatisiiwin, which corresponds to the word life, and includes both humans and animals. 65 This special relationship with the environment places emphasis on conservation and sustainability, and further re-enforces the notion that the Canadian Government s duty to consult Aboriginal peoples has an ever-increasing importance in regard to environmental law. 4. Alignment with UNDRIP Prior to Canadian Confederation in 1867, colonial policy in North America was characterized much differently than the Canadian Government s current de facto assertion of sovereignty over Aboriginal peoples. In fact, the content of the Royal Proclamation of 1763, a foundational document for Aboriginal legal development on the continent, embodied a policy that respected Aboriginal Nations sovereignty so long as they were needed as allies. 66 Indeed, Aboriginal groups understood this agreement to embody a government-to-government relationship between themselves and the Crown. 67 Later agreements, such as the Treaty of Niagara also affirmed a nation-to-nation relationship between the Aboriginal nations and the 62 Georgia Lloyed-Smith, The Relationship Between Environmental Rights and Aboriginal Rights: A Balanced and Synergistic Approach, ECELAW Student Paper Series (Dalhousie University 2014) at 2. 63 Kapashesit, supra note 59 at 929. 64 Ibid. 65 C. Scott, Knowledge Construction Among Cree Hunters: Metaphors and Literal Understanding (1989) 75 J Soc & Anthro 193 at 195. 66 Hoehn, supra note 14 at 11. 67 Ibid at 12. 17

British settler society and established that no member gave up their sovereignty. 68 While this government-to-government relationship is no longer legally embodied in current Canadian policy, and First Nation sovereignty has yet to be re-recognized by Canadian Courts, there is a shift underway toward re-establishing this type of relationship between the Canadian Government and First Nations across the country. 69 Although the current legal status of the Canadian Government s duty to consult with Aboriginal peoples is technically defined as a domestic legal issue, it is taking on an increasingly international character. Not only is there a paradigm shift underway in an academic sense regarding the classification of First Nations sovereignty, but the Canadian Government has also promised to implement UNDRIP, which has the potential to influence future court decisions as well as international decision making. 70 UNDRIP is a resolution by the United Nations General Assembly that was adopted in 2007 and is considered to be soft law and not legally binding within Canada unless it achieves the status of international custom or is implemented through domestic legislation. 71 Its principles have yet to be implemented through domestic legislation, but the doctrine of adaptation, according to the SCC, indicates customary international law should be incorporated into domestic law in the absence of conflicting legislation. 72 However, the resolution is not yet considered by legal academics to be customary practice because it is a relatively new doctrine and there has yet to be any evidence of uniform state practice. 73 The unfortunate reality is that despite being an internationally ratified treaty under the United Nations, UNDRIP has not yet been implemented within domestic Canadian law. Therefor, the treaty binds Canada in matters of international law, but the treaty itself has no effect as domestic law within the country s boarders, and the indigenous First Nations of Canada have yet to properly benefit from the agreement. 68 John Burrows, Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self- Government in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 155 at 163. 69 See Hoehn, supra note 14. 70 Schwartz, supra note 61 at 1. 71 Ibid at 4. 72 Ibid at 4. 73 Schwartz, supra note 61 at 4. 18

However, international law that has yet to establish its status as customary law within Canada, or come into effect through legislation, may still have influence within Canadian courts. 74 In a landmark immigration decision, the SCC determined that although Canada had ratified the Convention on the Rights of the Child, the convention s provisions did not directly apply within Canadian law because the convention had not been implemented. 75 Nevertheless, the SCC specifically acknowledged, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. 76 Therefore, although UNDRIP has yet to reach customary status or be implemented within Canadian law, its values may still be considered by the courts. 77 UNDRIP s potential to be utilized within the Canadian legal system is further bolstered in instances when a court is interpreting the constitutional requirements set out in section 35 of Canada s Constitution. 78 As established previously, the duty to consult Aboriginal peoples arises directly as a result of section 35(1) of the Constitution Act, 1982. The series of rights for indigenous peoples articulated in UNDRIP go far beyond those afforded to Aboriginal peoples in Canada by the courts current interpretations of section 35 of the Constitution. 79 Critically important is the fact that the principle of FPIC is mentioned throughout UNDRIP. For example, Article 32 requires states to: Consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 80 While the duty to consult Aboriginal peoples resembles much of the underlying principles of FPIC, the legal reality is that the duty to consult lacks the full range of benefits enshrined in FPIC and is often fulfilled in a less than desirable fashion depending on the depth of consultation required. In contrast, FPIC may be able to 74 Ibid. 75 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 [Baker]. 76 Ibid at para 69-70. 77 Schwartz, supra note 61 at 4. 78 Ibid at 4. 79 Ibid at 4. 80 UNDRIP, supra note 12. 19

provide Aboriginal groups with a better ability to shape and derive benefits from projects on traditions lands. 81 The implementation of UNDRIP by the Canadian Government was influenced by the Calls to Action report by the TRC of Canada. 82 Importantly, recommendation 43 of the TRC report calls upon federal, provincial, territorial and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation. 83 Further to this call to action, the current Canadian Government was elected on a platform that promised to implement all 94 TRC recommendations. 84 Every ministerial mandate issued by Prime Minister Justin Trudeau stated: No relationship is more important to me and to Canada than the one with indigenous peoples. It is time for a renewed, nation-to-nation relationship with indigenous peoples, based on recognition of rights, respect, cooperation, and partnership. 85 It is clear that a significant shift in Canadian Governmental policy is underway. This shift is characterized by a return to a more respectful nation-to-nation, or government-to-government, relationship between the Government of Canada and Aboriginal groups across the country. This shift will no doubt have important ramifications on the international stage in the years to come, and will certainly impact both domestic and international environmental law. While issues surrounding natural resource projects, and whether or not they are subject to FPIC, will continue to feature prominently in domestic legal discourse in Canada, the application of FPIC in article 19 of UNDRIP is a game changer in the area of law and policy. 86 Article 19 applies principles of FPIC by requiring the participation of indigenous peoples in the making of government policies, laws and other administrative decisions that may affect them. 87 By reading Articles 19 and 41 together, 81 Schwartz, supra note 61 at 5. 82 Schwartz, supra note 61 at 5. 83 TRC, supra note 13 at 320. 84 Schwartz, supra note 61 at 5. 85 See Justin Trudeau, Ministerial Mandate Letters online:<pm.gc.ca/eng/ministerial-madate-letters>. 86 Schwartz, supra note 61 at 5. 87 UNDRIP, supra note 12. 20

they compliment each other and not only require indigenous participation domestically as their governments international negotiating positions are being determined, but they also create space at the United Nations during the negotiation of international laws that will impact indigenous people. 88 What becomes increasingly evident is that when Article 19 of UNDRIP is read in conjunction with other articles, such as Article 41, there is significant potential to advance the discourse on IEL as indigenous rights become increasingly involved in international environmental agreements. 89 This potential will directly impact the Canadian Government s duty to consult Aboriginal peoples within the context and obligations of IEL in the future. 5. Alignment with IEL Agreements The significance of the duty to consult Aboriginal peoples within IEL becomes increasingly evident as new international agreements are ratified. However, the concept aligns with previous IEL agreements and principles, and it is evident that the evolution of these agreements and principles has followed a similar trajectory since the 1970s. The United Nations conference on the Human Environment was held in June of 1972 in Stockholm and is generally seen as the foundational moment of modern IEL. 90 One of the key outcomes of this conference was the Declaration on the Human Environment, 91 better known as the Stockholm Declaration. Similarly, the 1973 SCC decision in Calder v British Columbia (Attorney General) 92 became a catalyst for the development of Aboriginal rights and title within Canada, which in turn led to the development of the duty to consult Aboriginal peoples. While the Stockholm Declaration does not specifically mention indigenous people, Principle 1 of the declaration affirms the fundamental human right to adequate conditions of life, in an environment of a quality that permits a life of dignity and well being. 93 This principle forms 88 Schwartz, supra note 61 at 5. 89 Ibid at 6. 90 Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law (Cambridge: Cambridge University Press, 2017) at 8. 91 United Nations, Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc A/CONF 48/14/Rev.1, pp. 2ff [Stockholm Declaration]. 92 [1973] SCR 313 [Calder]. 93 Stockholm Declaration, supra note 91. 21

part of the foundation of IEL and is also directly applicable to indigenous people as it embodies much of the philosophy enshrined in both the duty to consult Aboriginal people and FPIC. Both IEL and Aboriginal rights and title have evolved significantly since 1972. While these developments are too detailed for the scope of this paper, it may be beneficial to highlight two examples of the relationship between indigenous rights, the duty to consult, and IEL. First, indigenous peoples are increasingly calling for participation in the development of international environmental agreements. 94 The United Nations has a central coordinating body for matters relating to both the concerns and rights of indigenous peoples, the Permanent Forum on Indigenous Issues, and it has specifically requested the UNFCCC and its member states to develop the necessary mechanisms to allow indigenous peoples to participate in all aspects of international dialogue on climate change. 95 Second, the Paris Agreement not only acknowledges the rights of indigenous peoples, but it also incorporates indigenous knowledge within Article 7(5). 96 These examples provide proof that IEL agreements are increasingly acknowledging and incorporating indigenous rights and perspectives as they evolve. It also indicates a general shift that will eventually impact the domestic laws of countries, such as the Canada, whose populations include indigenous peoples of the regions enclosed by their modern boarders. 6. Conclusion Aboriginal and environmental law naturally overlap in areas of resource utilization, conservation, and sustainable development. This overlap should come as no surprise given that aboriginal respect for the environment has a great deal in common with the ethical and philosophical attitudes of non-aboriginal environmentalists. 97 Aboriginal groups unique relationship with the environment has led to unique Aboriginal rights that directly interact with environmental law. Within Canadian law, the overlap between aboriginal and environmental law comes together critically in the Canadian Government s duty to consult Aboriginal 94 Schwartz, supra note 61 at 6. 95 United Nations, Permanent Forum on Indigenous Issues, Report on the Tenth Session, UNESCOR, 2011, Supp No 23, UN Doc E/2011/43-E/C.19/2011/14. 96 United Nations, Paris Agreement Paris 12 December 2015. 97 Kapashesit, supra note 59 at 927. 22

peoples. Internationally, this relationship and interaction are becoming increasingly important through agreements such as UNDRIP and through principles such as FPIC. Dwight Newman has even indicated that Canada s ongoing interaction with [UNDRIP] on the duty to consult is part of an ongoing conversation in the international legal area [and] the evolution of international law in this area may have future impacts on the Canadian doctrine. 98 Unfortunately, the current Canadian doctrine on the duty to consult Aboriginal peoples lags behind international standards of FPIC. Although the Canadian Government is not currently bound by UNDRIP at the domestic level, a small procedural shift in the duty to consult would bring about benefits on multiple levels. This small procedural change is simple. When the Canadian Government triggers the duty to consult, the depth of that duty should be presumptively deep. This presumption can then be rebutted through scientific evidence. This small shift in the procedural nature of the duty to consult Aboriginal peoples will allow for two critically important accomplishments. First, it better aligns with the principle of FPIC under UNDRIP, and, in turn, will not only allow the Canadian Government to better achieve its IEL obligations, but to also better achieve its broader obligations within the global community. Second, this shift in procedural doctrine will further Canada s unique second chance at reconciliation by offering better protection of the environment and these safeguards will benefit countless future generations as they continue on the path of reconciliation and make the most of Canada s exceptional second chance. 98 Newman, supra note 21 at 165. 23

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