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

Fried and Baked Bannock

Missing:

•Moose Meat Stew

•Rubaboo (Rabbit Stew)

•Fried Pickerel

•Dried Fish and Dried Meat

•Smoked Fish

•FriedVenison

•Cranberries and Blueberries

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 sharp-

dealing (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-to-

nation 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

FPICFree 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 rights-

based 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