Consultation with First Nation Communities

David J. Stinson

The Problem

In January of 2007 a rural Ontario politician was reported to have said that a $300 million, corporate-owned wind energy project, proposed by Epcor Utilities Inc., was put on hold because a native community was claiming ownership of the wind (De Bono, 2007).  The Chief of the First Nation countered that they had tried to review the project as quickly as possible, but had been consulted at the last minute (Miller, 2007).   Epcor refused to blame anyone in particular, but stated that they had negotiated with native communities in British Columbia and Alberta, and that this should help them here (De Bono, 2007).  The Township, for its part, delayed the project due to concerns over setbacks for turbines (Bender, 2007; Divinski, 2007).  A similar $400 million project, by Enbridge Inc., near Kincardine, was not “signed-off” because, by their own admission, they had not properly consulted the local First Nation (Dodd, 2007).  This project has since been sent to the Ontario Municipal Board (Patterson, 2007; “The One”, 2007).

The prevalence of the apparent confusion displayed here can also be seen in the “…Oneida opposition over Toronto’s private negotiations for a landfill, Mississauga protests about Toronto’s approval of a small airport, and Mohawk blockades around developments outside Deseronto…” (Shanks, 2007).  It raises an intriguing question of why consulting with First Nations is still in such a “primitive” state, particularly since the cost of not doing so can be high (Brackstone, 2002; Cowan, 2007, Shanks, 2007).  Part of the answer is that there can be a lack of recognition, sometimes a lack of understanding, even a lack of respect for the fact that the “first” peoples were here… first!  Since they’re often not seen as part of the “game”, they’re not often treated as “players”.  If a First Nation and its concerns are unimportant, why would one talk to them?  But even when this limited view is overcome, or even if there is a genuine desire for dialogue, there can still be a vacuum of appropriate methods for engagement.

Since consultation lies at the heart of good planning practice, and since the “duty to consult” is a principle which is emerging in Canadian jurisprudence, this article has two sections.  The first focuses on the growing body of case law which elaborates why consultation with First Nations is vital, not just for public agencies, but private concerns.  The second is a reflection of the author’s experience on how to fulfil the moral obligation, not simply the procedural requirement, of consultation in this context.

Part I
Legal Context

Constitutional Dilemma

Part of the problem is that under our constitutional arrangements the fiduciary issues related to native peoples have been assigned to the Federal government, while the economic issues related to land have been assigned to the Provinces (Cowan, 2007, Shanks, 2007).   Yet from a First Nation perspective, while their primary legal relationship is with the highest representatives of the Crown, their fundamental relationship with the land is at the heart of their cultural self-definition.  Cowan (2007) infers that prior aboriginal occupation of the land is the starting point for understanding this issue.  Pre-contact traditions and the common law traditions interacted to produce the treaties with the Crown.  Later constitutional developments reaffirmed the treaties and later common law developments framed statutes.  What Cowan (2007) confirms is that the legal obligations arising from the constitutional and statutory levels, though different, are nevertheless related.

Aboriginal Title

The constitutional case law has been accumulating both before and since, but the definitive decision was Delgamuukw v. British Columbia [1997].  In it, the Supreme Court legitimised the concept of Aboriginal title.  Oral history, traditional land use, archaeological and anthropological evidence can all be used to establish such title.  The traditional territory involved must have been exclusively occupied before Britain asserted her sovereignty, and a substantial connection must have been maintained until the present.  The significance of the case is that, for the first time, an Aboriginal legal interest in traditional lands was recognised (Brackstone, 2002; Delgamuukw, 2007).

Previously, the Supreme Court had ruled that section 35 of the Constitution Act, 1982 protected Aboriginal title, and could thus only be infringed in very specific ways.  To do so the government must be acting in the best interests of society, while also maintaining its fiduciary obligation towards First Nations (Brackstone, 2002; Delgamuukw, 2007).  The test of any infringement was provided by the earlier R. v. Sparrow [1990] case.  Once an aboriginal right has been established, infringement would have to be justified against the following:

• is the exercise of the right being prevented?
• does it impose undue hardship?
• is it unreasonable?
• is there a valid legislative objective?
• is priority given to First Nations?
• is the infringement as small as possible?
• has compensation been given for any expropriation?
• has there been appropriate consultation?
• (Brackstone, 2002)

 

Good Faith

Giving priority to Aboriginal title and reflecting, even accommodating, the interest of First Nations entails consultation in good faith.  To this end, the government must negotiate and sincerely engage those communities that their decisions affect (Brackstone, 2002; Delgamuukw, 2007; Shanks, 2007).  This does not imply a “duty” to agree; nevertheless, determining whether consultation has occurred can be used to determine if any infringement of Aboriginal title is justified, even before such title has been conclusively established by a court, and before any infringement occurs (Brackstone, 2002; Cowan, 2007; Shanks, 2007).  A First Nation, for its part, must also participate in good faith and not frustrate the process.  But the “duty to consult” has been construed as a governmental obligation in which the “Honour of the Crown” is at stake.  Though the onus may rest on a First Nation to demonstrate its prima facie case, the onus rests on the Crown to demonstrate that its “duty to consult” was met (Brackstone, 2002).

Sovereignty

Aboriginal title is of course layered upon Crown title.  Sovereignty, along with the underlying legislative jurisdiction, remains with the Crown (Brackstone, 2002; Delgamuukw, 2007).  Nonetheless, in a more recent case, Haida Nation v. British Columbia [2004], the Supreme Court linked the assertion of sovereignty with an obligation of trust towards native peoples.  They argued that since Aboriginals were never conquered the Crown must justify taking over their lands.  The quid pro quo for the right to claim sovereignty was that the “Honour of the Crown” must be upheld; thus establishing, as Shanks (2007) put it, “a protectorate relationship with indigenous peoples”.  Indeed, this principle lies at the heart of the legal foundation of Canada’s constitution and institutional arrangements.  In adjudicating the Haida dispute, in which the Province, the First Nation, and a private enterprise where all parties, the Court ruled that this principle was violated because the First Nation was not consulted (Shanks, 2007).  

Statutory Obligation

A recent Ontario case has elaborated the statutory “duty to consult”.  It was triggered by the transfer of environmentally sensitive areas of the Oak Ridges Moraine lands for developable parcels of the Seaton lands near Pickering.  It dealt with respect for burial sites, an Aboriginal right.  Since Iroquois, Huron-Wendat, and Anishnaabeg had all occupied this territory there was concern whether all possible First Nations were properly consulted.  The court used Aboriginal, historical, legislative, and constitutional evidence and ruled that the Crown was not obliged to consult with the appellant Anishnaabeg communities due to the fact, among others, that these First Nations surrender these lands in the Williams Treaty, 1923.  However, it left firmly in place the statutory “duty to consult”, as found in such legislation as the Environmental Assessment Act, the Planning Act, or the Cemeteries Act (Cowan, 2007; Pardu, 2007).

Third Parties

The courts have now extended the duty to consult from governments to third parties. Though the substantive requirements are undefined and vary depending on the strength of evidence for title and the degree of infringement, the duty implies that:

• all necessary information is given to the First Nation,
• it is given in a timely manner,
• the First Nation has an opportunity to express their interests and concerns,
• their responses are seriously considered,
• and wherever possible, are shown to be integrated into the proposal.

The intent is to give native groups a meaningful role in decision-making (Brackstone, 2002).  The full ramifications for private ventures are not known yet, but a more open approach to native communities will be needed in order to avoid the aforementioned cost of not doing so (Brackstone, 2002; Cowan, 2007, Shanks, 2007).  What is intriguing are the implications for advocacy and non-profit groups.  As one analyst noted: “When these Aboriginal concerns mesh with environmental groups’ concerns, the duty to consult can become a powerful tool to force government and industry to respond” (Brackstone, 2002).   

Part II
Consultation Process

Policy Context

Having established the duty to consult as an a priori Aboriginal title interest, when and how should such consultation proceed?  Several Provincial governments have come up with guidelines, such as B.C.’s Provincial Policy for Consultation with First Nations (see www. gov.bc.ca/srm/; link “First Nation Consultation Policy”), Ontario’s Draft Guidelines for Ministries on Consultation with Aboriginal Peoples Related to Aboriginal Rights and Treaty Rights (see http://www.aboriginalaffairs.osaa.gov.on.ca/english/news/draftconsult june2006.pdf), or the Ontario Energy Board’s Aboriginal Consultation Policy
(see http://www.oeb.gov.on.ca/documents/cases/EB-2007-0617/acp_policy_20070618.PDF). Aboriginal organisations, such as the Chiefs of Ontario office, have also undertaken the development of their own consultation policy documents to assist their members in dealing with external governments.  Protocols involving First Nations and municipalities have occasionally been hammered out for issues of mutual concern such as the Grand River Notification Agreement (see www.sixnations.ca/Nov3ClaimsBooklet.pdf ), or the O’Donnell Point Notification Protocol (see www.ontarioparks.com/english/planning_pdf/ odon_supplement_to_final_esr.pdf - Supplemental Result).  Hopefully, such approaches may help inter-governmental relations.  But not all contingencies can be anticipated, and besides these are less likely to provide direct guidance to those outside public service.  
So, if someone feels that they may need to talk with a First Nation about an issue of mutual concern, what should they do?  Cowan (2007) feels that such discussion is interest-based, rather than rights-based, and should be thought of more along the lines of mediation.  One has to determine whether the scale and nature of the project, along with the possible existence of aboriginal title, and the degree of concern by a given native community warrants consultation.  If so, then appropriate steps can be taken to initiate discussions.

Scale and Nature

Proponents should consider consultation if their project involves:

• Federal Environmental Assessment
• Provincial Environmental Assessment
• The Planning Act
• Property adjacent to land reserved for a First Nation
• Property adjacent to land owned in fee simple by a First Nation
• Property within a land claim disputed by a First Nation
• Property within a traditional territory actively used by a First Nation
• Known pre/historic cultural, settlement, and burial sites
• Cultural, settlement, and burial sites discovered during archaeological assessment   
• Human remains discovered during construction

Aboriginal Title

Proponents should make a preliminary assessment on any claims or rights:

• Is there a Treaty with a First Nation in the region?
• Has there been occupation or possession by a First Nation?
• Was there an activity associated with a First Nation?
• Is there an Aboriginal right involved?
• Have negotiations begun on a claim?

It is important to research back to before the Crown patent on the land to see if there is an Indian patent.  One should check with Indian and Northern Affairs Canada for any claims, and the Ontario Secretariat of Aboriginal Affairs for any litigation.  It may also be advisable to understand the general terms of any treaty, to clarify what interests may be at stake (e.g., hunting, fishing, etc.) (Cowan, 2007; Shank, 2007).

Degree of Concern

Proponents should ascertain the level of importance attached to their project:

• None:  a First Nation may have explicitly expressed a lack of interest in similar issues;
  government officials may be aware which ones.  But priorities change and there are no guarantees.
• Minor: any statutory obligation or known protocol should be observed.
• Major: any issue that may impinge on native rights, culture, lands, or economic prospects should be a candidate for full consultation.  The extent required can never be pre-determined.

Process

It is helpful when dealing with First Nations to remember the following:

• Every situation is unique
• New situations cannot be treated as extension of previous ones
• The community must be approached with respect
• An atmosphere of trust must be created
• Proceeding must be done on a basis of mutual understanding
• Silence must never be construed as consent

Under the Indian Act, all communities which have had land reserved for them are required to have a Chief as well as a Council, members of which may hold portfolios for specific issues.  Most have an administrator.  Some have lands administrators -- the position closest to a planning director in many municipalities, or an economic development officer.  Any one of these may be able to help, but getting through to the correct person is not always straightforward, and a prompt response is not always assured.  This should not be taken as a lack of interest; patience here is a virtue.  Those in these positions are usually very busy, and the demands of community life will take precedence over outside concerns (Ahenakew, 2006).  An entrée to a First Nation can, on occasion, be had through lower-level bureaucrats of Indian and Northern Affairs Canada or service organisations such as Tribal Councils, who are familiar with a given community. 

If the matter is minor, Cowan (2007) suggests that a letter sent to the Chief, according to the Planning Act Regulations, may suffice.  A follow-up phone call to the Chief should be placed for more substantive issues.  During that conversation a willingness to attend a Council meeting as well as visit staff can be extended.  Once contact has been established, electronic mail may be fine.  But it should be remembered that if a community is small, or remote, or even just slightly “out-of-the-way” it may not always be well serviced by communications providers.  If invited to meet with Chief and Council, that opportunity may be used to offer to explain the proposal to the community at a meeting arranged by Chief and Council. 

Proper conduct at a meeting is also necessary.  A constant verbal barrage and the aggressive pushing of an idea can be offensive in a culture that respects humility and listening.  The native tradition was largely oral and they often rely on the spoken word.  A verbal response can still carry a reverence that Western society now only reserves for a written one.  Allowing time in a conversation or a meeting for reflection and silence is important (Ahenakew, 2006).  Sometimes it is best to defer a decision to a later date so due consideration can be given.  Numerous meetings may be required to reach a resolution.  If the discussion extends to the community, creative techniques that avoid the boredom or the tension of a typical “public meeting” should be entertained.   

In the end a proponent must simply be forewarned that a duty to consult exists.  Even if a prescribed process is used, it does not mean that things cannot go awry, or that they will not be fodder for the courts.  Consulting with a First Nation is never just another “check-box” on a to-do list.  But there can be an upside.  Shanks (2007) suggests that not only would the stress of situations such as Caledonia, Ipperwash, and Oka be reduced with proper consultation of native people, but that there would be “many political, economic, and cultural benefits” from actually collaborating with them.  This implies a genuine working relationship, even friendship, for which there is no business or legal substitute.  

This document was originally prepared as a brief for the Ontario Sustainable Energy Association to assist their ongoing work with First Nations.  The legal ramifications presented here are the author’s understanding of this topic, and should not be taken as a substitute for legal advice.  David J. Stinson, MCIP, RPP, is a partner in Incite Planning which focuses on native planning issues. 

Email David J. Stinson

References

1. Ahenakew, Lee. 2006. “Cross-cultural business communication 101”.  Windspeaker Business Quarterly. Aboriginal Multi-media Society. Second Quarter-summer 2006: 16.
2. Bender, Sara. 2007. “Council taking wind turbine concerns to MOE”. Lucknow Sentinel. Wednesday 28 February 2007. Lucknow, Ontario.Brackstone, Paul. 2002. Duty to Consult with First Nations. Environmental Law Centre, University of Victoria. Victoria, British Columbia. [http://www.elc.uvic.ca/projects/2002-03/2002-03-01.pdf]. 8 March 2007.
3. Cowan, Jeff. 2007. “Duty to Consult”.  First Nation Consultation and Archaeology seminar. 16 February 2007. Ontario Professional Planners Institute. Barrie, Ontario.
4. De Bono, Norman. 2007. “Stuck on red tape: The $300-million second phase of a wind turbine project near Goderich is shelved”.  The London Free Press. Sunday 28 January 2007: A1. London, Ontario.
5. Delgamuukw. 2007. “A Community Guide to Delgamuukw”. The Delgamuukw / Gisday’wa National Process.   [http://www.delgamuukw.org/community/negotiate.htm]. 8 March 2007.
6. Dodd, Scott. 2007. “Partnership Potential”. First Nation’s Energy Forum: First Nation Opportunities-Powering Our Future. 13 & 14 February 2007. Casino Rama, Mnjikaning First Nation.
7. Divinski, John. 2007. “More support for Kingsbridge wind”. Bayshore Broadcasting, 560 CFOS. Owen Sound, Ontario. 20 February 2007.
8. Miller, John. 2007. “Consulted at the 12th hour”. The London Free Press. Friday 2 February 2007: B1, City-Region. London, Ontario.
9. Pardu, J., J. Hoilett and J. Ground. 2007. Hiawatha First Nation v. Ontario (Minister of the Environment). Ontario Superior Court of Justice, Divisional Court.  12 February 2007: 286/06.
10. CanLII 3485 (ON S.C.D.C.). [http://www.canlii.org/on/cas/onscdc/2007/2007onscdc10025.html]. 8 March 2007.
11. Patterson, Troy. 2007.  “Enbridge Project OMB hearing scheduled for April 23”. Kincardine News. 31 January 2007.  Kincardine, Ontario.
12. Shanks, Signa A.D. 2007. “Municipalities and First Nations Reserves: What’s the connection?”.  Municipal World. January 2007, Vol. 117, #1: 31-32, 42.
13. “The One”. 2007. “Kincardine Windfarm Discussions Begin April 23”.  FM 101.7. Wingham, Ontario.