Duty to Consult, Reconciliation and Economic Development Frameworks Metis Nation Economic Development Policy Forum Vancouver BC March 17, 2017
OUR LAND IS OUR LIFE
Stuffed Whitefish Roasted Muskrat Missing: Moose Meat Stew Rubaboo (Rabbit Stew) Fried Pickerel Dried Fish and Dried Meat Smoked Fish FriedVenison Cranberries and Blueberries Fried and Baked Bannock
THE LEGAL FRAMEWORK: DUTY TO CONSULT
The Crown is in a fiduciary relationship with the Métis Nation when their traditional ways of life are at stake. The honour of the Crown dictates that the Métis Nation be consulted and accommodated at such a time.
Honour of the Crown The government s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples. It is not a mere incantation, but rather a core precept that finds its application in concrete practices. (R. v. Haida)
Honour of the Crown cont. where discretionary Crown control over Aboriginal interest, a fiduciary duty will arise from the honour of the Crown (MMF) purposive interpretation of s.35 leads to duty to consult and accommodate Crown action that may affect claimed but unproven rights (MMF)
Honour of the Crown cont. in treaty making and implementation, there will be a duty to engage in honourable negotiation and avoid appearance of sharpdealing (MMF)
Fiduciary Duty Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty. (R. v. Haida) The Crown has a duty to consult with Aboriginal people when conditions occur: The Crown has knowledge, real or constructive, of the existence, or potential existence of an Aboriginal right or treaty right and The Crown contemplates conduct that might adversely affect the right in question.
The Duty to Consult The duty to consult and accommodate flows from the Crown s assumption of sovereignty over lands and resources formerly held by the Aboriginal group The Crown alone remains legally responsible for the consequences of its actions and interactions of third parties that affect Aboriginal interests. (R. v. Haida)
RECONCILIATION WITH THE METIS NATION
The Métis Promise S. 35 is a commitment to recognize the Métis and enhance their survival as distinctive communities. (Powley) federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies Aboriginal rights (Sparrow) Prime Minister s commitment to a renewed nation-tonation relationship with Indigenous Peoples, one based on the recognition of rights, respect, co-operation, and partnership
Principled Approach to s. 35 Métis Nation rights recognition and reconciliation (Thomas Isaac Report) Reconciliation and Honour of the Crown demands timely settling of past grievances the creation of mechanisms for moving forward, including multilateral processes the development of a Métis Nation-specific comprehensive and specific claims policy that engages provinces Specific review of the law re: rights of the Métis Nation
Mi kmaq NS Canada Consultation tripartite agreement that codifies a willingness to discuss definition, recognition and implementation of Mi kmaq rights 2002 umbrella agreement, framework agreement in 2007 and consultation process ToR in 2010
Goals assessment of possible infringements by Crown decisions/actions minimize impacts on Mi kmaq rights/title accommodation
Roles and Responsibilities Mi kmaq one point of entry receives consultation requests communicates concerns/impacts and provides information to proponents, Province and Federal Government
Duty to Consult the Métis Nation and Major Projects adequate consultation capacity, including financial and expertise chosen by Métis Nation clear articulation on how the Métis Nation can be informed about project prior to commencement development of Métis traditional knowledge, process for access and sharing
FULL IMPLEMENTATION OF UNDRIP: DTC
UNDRIP / ADRIP / ILO Convention post-colonial thinking and action
UNDRIP Article 8(2) States shall provide effective mechanisms for prevention* of, and redress for: (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; * Prevention of unlawful dispossession = duty to consult
UNDRIP Article 19 States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent BEFORE adopting and implementing legislative or administrative measures that affect them. (see also Articles 32, 10, 11, 28 and 29)
UNDRIP Article 26 Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use States shall give legal recognition and protection of these lands, territories and resources.
ADRIP Article XXIX: Right to development States shall 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 that affects their lands or territories or other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
UNDRIP / ADRIP / ILO Convention the legal framework of free, prior and informed consent
FPIC Free implies without coercion, intimidation or manipulation Prior implies consent has been sought sufficiently in advance of any authorization or commencement of activities and respects time requirements of Indigenous consultation / consensus processes Informed implies that information is provided that coversat least: the nature, size, pace, reversibility and scope of any proposed project; the reason or purpose of the project/activity; the duration; the locality that will be affected; a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit sharing in a context that respects the precautionary principle; personnel likely to be involved; procedures for the project Consent implies consultation and participation undertaken in good faith, with representatives of their own choosing, in reasonable timelines, full and effective participation, with the option of withholding consent, engagement of women, youth and TK, as determined appropriate. (IFAD Policy on Engaging with Indigenous Peoples)
FPIC Process of engaging and partnering to ensure full involvement and freely given consent. Requires that the state considers NOT moving forward with initiatives unless FPIC achieved. Ensues a partnership of equals is facilitated and realized. Requires establishment of a dialogue and relationship of trust early in the project discussions. Requires a good faith effort from all involved parties to discussing options. (Global Environment Facility: Principles for Engagement of Indigenous Peoples)
FPIC Implementation Identification and recognition of Métis Nation experts and early engagement of this expertise; Capacity building with the Métis Nation to ensure effective participation in the conception, planning and implementation of projects; Ensuring adequate time frames for engagement; Establish formal mechanisms for decision-making; Ensure training and programs for project managers
FPIC Interpretation ILO Convention Articles 6 and 7 The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions, and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, the extent possible over their own economic, social and cultural development. In addition they shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development, which may affect them directly Governments shall ensure that whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities.
FPIC Interpretation UNDRIP Article 30 Indigenous peoples have the right to determine and develop priorities and strategies for the de elopement and use of their lands, territories or other resources, including the right to require that States obtain their free and informed consent prior to the approval of any protect affecting their lands, territories or other resources.
FPIC Interpretation ILO Convention Article 15 Procedures for consultation by the state even where the state retains ownership of mineral or subsurface resources with a view to ascertaining whether and to what degree their interests would be prejudiced before undertaking or permitting any programs for the exploration or exploitation of such resources pertaining to their lands.
UNDRIP and NEB MODERNIZATION
IMPLEMENTATION OF UNDRIP a case in point: National Energy Board Modernization
NEB Modernization: Duty to Consult Asking Indigenous peoples what is their view on Canada s approach to engagement and consultation of the Métis Nation on NEB projects Identification of Interests Funding / capacity TK engagement Assessment / management of impacts Engagement over life of projects
Reconciliation / NEB Review There is a need for rights-based legislation and policies recognizing and promoting respect for: 1. Rights / Interests of Indigenous peoples 2. Free, prior and informed consent 3. Traditional knowledge engagement 4. Access and benefit sharing from resources
NEB Modernization (and the issue of timely resolution of historic grievances / review of Metis Nation specific impacts) 1. The definition of Aboriginal Group does not include the Métis Nation effect of NOT recognizing the Métis Nation (ie: s. 91(24)) 2. The definition of lands to be excluded from appropriation does not include lands to which the Métis Nation hold a legal interest or may hold a legal interest effect of NOT resolving historic grievance from dispossession of Métis Nation traditional lands
NEB Modernization 3. How does the NEB Act ensure Métis Nation interests are addressed and ensure equitable access and benefit sharing agreements are undertaken with the Métis Nation? 4. How does the NEB Act ensure that Canada / proponents obtain the free, prior and informed consent of the Métis Nation BEFORE projects begin?
NEB Modernization 5. How does the NEB Act ensure the Crown / proponents undertake the appropriate capacity building supports to ensure the Métis Nation is engaged in the identification, development, implementation, monitoring and evaluation of projects through co-management regimes? 6. How does the NEB Act ensure Métis Nation participation in decision-making? (Métis Nation representation: NEB Board / Experts/ Advisors)
NATION-TO-NATION MECHANISMS
Reconciliation and partnership (and the issue of Métis Nation specific policies and legislative review) 1. Permanent bilateral mechanism Canada / Métis Nation protocol 2. Climate Change Canada/ Métis Nation protocol 3. S. 35 Rights and Reconciliation negotiations by Governing Member and NWSMC land claim 4. Legislative change that respects UNDRIP/ADRIP 5. Industry relationships development of rightsbased policies, administration, partnerships, access and benefit sharing / co-management / impact-benefit agreements, agreed-upon dispute resolution mechanisms with Métis Nation
Reconciliation and partnership (and the issue of Métis Nation specific policies and legislative review) 1. Public Legislative review process - small c consultation 2. Aboriginal rights review with the Indigenous Peoples big C consultation must now follow with MNC / Governing Members (process to be determined)
Presentation by: Kyle P. Vermette VERMETTE LAW and Kathy L. Hodgson-Smith HODGSON-SMITH LAW Advisors to Metis National Council