- Footnote 1
I have attached a list of participants at Appendix A.
Return to footnote 1 referrer
- Footnote 2
peoples of Canada" is defined in s. 35(2) of the Constitution Act, 1982 to
include "Indian, Inuit and Métis peoples of Canada". R. v. Sparrow, 
S. C. J. No. 49 (SCC) at para. 53 ("Sparrow").
Return to footnote 2 referrer
- Footnote 3
v. Little Salmon/Carmacks First Nation,  S. C. J. No. 53 (SCC) at para. 10 ("Little
Return to footnote 3 referrer
- Footnote 4
Sparrow at paras. 68-69; R. v. Van der
Peet,  S. C. J. No. 77 (SCC) at pars. 46-74 ("Van der Peet"), R.
v. Powley,  S. C. J. No. 43 (SCC) at paras. 14-46. ("Powley")
Return to footnote 4 referrer
- Footnote 5
Delgamuuk v. British Columbia,  S. C. J.
No. 108 (SCC) at paras. 143-159 ("Delgamuuk"); Tsilhqot'in Nation v. British Columbia,  S. C. J. 44 (SCC) at paras. 24-50 ("Tsilhqot'in")
Return to footnote 5 referrer
- Footnote 6
Sparrow at paras. 71-75; Delgamuuk at para. 160; Tsilhqot'in at paras. 77-88.
Return to footnote 6 referrer
- Footnote 7
Nation v. British Columbia (Minister of Forests),  S. C. J. No. 70 (SCC) at para. 35 ("Haida"); Taku River Tlingit First Nation v. British Columbia (Project Assessment
Director),  S. C. J. No. 69 (SCC) at para. 25 ("Taku River"); Mikisew
Cree First Nation v. Canada,  S. C. J. No. 71 (SCC) at paras. 33-34 &
55 ("Mikisew Cree"); and Little Salmon/Carmacks at para. 38. The duty to consult was previously recognized in other contexts but Haida and Taku River fundamentally altered the legal landscape in
this area because the SCC recognized that the duty extends to asserted but not
yet proven Aboriginal rights and title and it established the overall framework
for consultation and accommodation. See, for example: Sparrow at
para. 82; R. v. Nikal,  S. C. J. No. 47 (SCC) at paras. 109-110; R.
v. Gladstone,  S. C. J. No. 79 (SCC) at paras. 55 & 64; and Delgamuuk at para. 168
Return to footnote 7 referrer
- Footnote 8
Haida at para. 16-18 & 32. The honour of the Crown is a constitutional
principle that arises "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". Its purpose is "the reconciliation of
pre-existing Aboriginal societies with the assertion of Crown sovereignty" and
gives rises to different duties in different circumstances. It requires the
Crown to act honourably in its dealings with Aboriginal peoples, although SCC
clarified in Manitoba Métis Federation that not all interactions between Aboriginal peoples
and the Crown engage the honour of the Crown. See also Little
Salmon/Carmacks at para. 42-43; Manitoba Métis Federation Inc. v. Canada,  S. C. J. No. 14 (SCC) at paras.
Return to footnote 8 referrer
- Footnote 9
Mikisew Cree at paras. 33-34 & 55; Little Salmon/Carmacks at paras. 61 & 67-69.
Return to footnote 9 referrer
- Footnote 10
Haida at para. 39.
Return to footnote 10 referrer
- Footnote 11
Haida at paras. 46-48.
Return to footnote 11 referrer
- Footnote 12
Haida at para. 42.
Return to footnote 12 referrer
- Footnote 13
Mikisew Cree at para. 54.
Return to footnote 13 referrer
- Footnote 14
Taku River at para. 40; Brokenhead Ojibway Nation v. Canada,  F. C. J. No. 608 (FC) at para. 42. ("Brokenhead")
Return to footnote 14 referrer
- Footnote 15
Haida at para. 53.
Return to footnote 15 referrer
- Footnote 16
Grassy Narrows First Nation v. Ontario,  S. C. J. No. 48 (SCC) at para. 30 ("Grassy Narrows").
Return to footnote 16 referrer
- Footnote 17
Haida at para. 48; Mikisew Cree at para. 66; Little Salmon/Carmacks at para. 14, Yellowknives Dene First Nation v. Canada,  F. C. J. No. 829 (FCA) at para. 56.
Return to footnote 17 referrer
- Footnote 18
Haida at para. 42; Halfway River First Nation v. British Columbia,  B. C. J. No. 1880 (CA) at
para. 24 ("Halfway River"); Long Plain First Nation v. Canada 
F. C. J. No. 96 (FCA) at para. 158. ("Long Plain")
Return to footnote 18 referrer
- Footnote 19
Tsilhqot'in at paras. 80, 86-88.
Return to footnote 19 referrer
- Footnote 20
Nunatukavut Community Council v. Canada,  F. C. J. No. 969 (FC) at paras. 103-4 ("Nunatukavut"); Hupacasath First Nation v. Canada (Minister of Foreign Affairs),  F. C. J. 927 (FC) at para. 51; Snuneymuxw First Nation v. Board of Education – School District #68,  B. C. J. No. 1343 (SC) at para. 59; Gitxaala Nation v. Canada,  F. C. J. No. 289 (FCA) at para. 16.
Return to footnote 20 referrer
- Footnote 21
Examples of this include Environment and Climate Change Canada, the Canadian Environmental Assessment Agency, Transport Canada, the Canadian Nuclear Safety Commission, and Parks Canada.
Return to footnote 21 referrer
- Footnote 22
These training sessions cover a wide range of consultation and accommodation issues and provide further guidance on common challenges and legal developments in this area. Between 2008 and 2012, this training was delivered in a one-day "Consultation 101" session. Since 2012, INAC has provided training in a more in-depth two-day "Consultation 201" session.
Return to footnote 22 referrer
- Footnote 23
Regional Consultation Coordinators (RCCs) work to improve coordination amongst federal departments and agencies and with provinces and territories as well as negotiate consultation protocols, among other things. The coordination role of RCCs is largely internal but their ability to coordinate depends on their powers of persuasion asthey do not have any authority over other departments. They do not interact significantly with Aboriginal communities, although there are some exceptions. The RCCs also have other non-consultation related responsibilities in their respective regional INAC offices.
Return to footnote 23 referrer
- Footnote 24
These Committees include Deputy Ministers, Assistant Deputy Ministers, or other senior representatives from INAC, Natural Resources Canada, Environment and Climate Change Canada, Fisheries and Oceans, the Department of Justice, the Canadian Environmental Assessment Agency, the Canadian Northern Economic Development Agency, the Canadian Nuclear Safety Commission, and the National Energy Board
Return to footnote 24 referrer
- Footnote 25
Canadian Northern Economic Development Agency, Community Readiness
Return to footnote 25 referrer
- Footnote 26
See Major Projects Management Office – West
Return to footnote 26 referrer
- Footnote 27
Douglas R. Eyford, Forging Partnerships, Building Relationships: Aboriginal Canadians and Energy Development, November 2013, pp. 36-37
Return to footnote 27 referrer
- Footnote 28
Some federal departments and agencies have issued additional guidance to proponents, such as the Canadian Nuclear Safety Commission in REGDOC-3. 2. 2 Aboriginal Engagement and the National Energy Board in its Filing Manual.
Return to footnote 28 referrer
- Footnote 29
A couple of participants raised concerns with the insufficiency of consultation by Parks Canada for the creation of additional park lands. The failure of Parks Canada to consult with an Aboriginal group was also the subject of the first SCC case that considered whether Canada had met the duty to consult - see Mikisew Cree.
Return to footnote 29 referrer
- Footnote 30
Parks Canada, Promising Pathways – Strengthening Engagement and Relationships with Aboriginal peoples in Parks Canada Heritage Places, 2014 ("Promising Pathways"); Parks Canada, The Land is Our Teacher – Reflections and Stories on Working with Aboriginal Knowledge Holders to Manage Parks Canada's Heritage Places, 2015, p. 1.
Return to footnote 30 referrer
- Footnote 31
I have reviewed many guidance documents across the country for this engagement and this one distinguishes itself in its practicality and message, including, among other things, providing helpful "lessons from the field" of Parks Canada employees, examples of specific successful relationship-building initiatives, as well as a message from the former CEO which makes it clear that it is an organizational priority.
Return to footnote 31 referrer
- Footnote 32
See British Columbia, Building Relationships with First Nations – Respecting Rights and Doing Good Business
Return to footnote 32 referrer
- Footnote 33
The 2011 Guidelines state that "reconciliation has two main objectives: 1) the reconciliation between the Crown and Aboriginal peoples and; 2) the reconciliation by the Crown of Aboriginal and other societal interests". This does not explain what is exactly being reconciled. It also does not explain that it is not just about redress for historic grievances but also about reconciling "the prior occupation of North American by distinctive Aboriginal societies with the assertion of Crown sovereignty over Canadian territory". In Delgamuuk, then Chief Justice Lamer held s. 35(1) must recognize and affirm two aspects of this prior presence (i) the occupation of the land and (ii) the prior social organization and distinctive cultures of aboriginal peoples on that land. (see paras. 81 & 141)
Return to footnote 33 referrer
- Footnote 34
Promising Pathways, p. 4.
Return to footnote 34 referrer
- Footnote 35
Promising Pathways, p. 4.
Return to footnote 35 referrer
- Footnote 36
It currently can take up to 30 years to negotiate a comprehensive land claims agreement and the average negotiating time is 15 years. See Douglas Eyford, "A New Direction: Advancing Aboriginal and Treaty Rights", April 2015
Return to footnote 36 referrer
- Footnote 37
Douglas Eyford, "A New Direction: Advancing Aboriginal and Treaty Rights", April 2015
Return to footnote 37 referrer
- Footnote 38
Indigenous and Northern Affairs Canada, Engagement with Métis
Return to footnote 38 referrer
- Footnote 39
Indigenous and Northern Affairs Canada, Cabinet Directive on the Federal Approach to Modern Treaty Implementation
Return to footnote 39 referrer
- Footnote 40
Chartrand v. British Columbia,  BCCA 345 (CA) at para. 77.
Return to footnote 40 referrer
- Footnote 41
There is some case law which suggests that at least some historic rights bearing Métis communities should be defined on a regional rather than local basis. See R. v. Hirsekorn,  A. J. No. 697 (CA) at para. 63.
Return to footnote 41 referrer
- Footnote 42
In Powley, the SCC held
that "The term 'Métis' in s. 35 does not encompass all
individuals with mixed Indian and European heritage; rather, it refers to
distinctive peoples who, in addition to their mixed ancestry, developed their
own customs, way of life, and recognizable group identity separate from their
Indian or Inuit and European forebears. "The SCC set out three broad factors
as indicia of Métis identity for the purposes of claiming Métis rights under s. 35: (i) self-identification as a member of a Métis community (ii) present evidence of an ancestralconnection to an
historic Métis community (iii) acceptance by the modern
community whose continuity with the historic community provides the legal
foundation for the right being claimed. The SCC recently held in Daniels v.
Canada,  S. C. J. No. 12 (SCC) that the definition of Métis in the context of s. 91(24) of the Constitution Act, 1867 was
not restricted to the Powley criteria but it did not alter the
definition of Métis for the purposes of s. 35, which is the
relevant definition for the duty to consult.
Return to footnote 42 referrer
- Footnote 43
Van der Peet at para. 46.
Return to footnote 43 referrer
- Footnote 44
does have a Memorandum of Understanding with British Columbia on information
sharing. This has resulted in the sharing of provincial geospatial and
ethnohistorical data, which has provided additional helpful information to
federal officials for identifying and assessing Aboriginal interests that may
be relevant for consultation on federal decision-making in BC.
Return to footnote 44 referrer
- Footnote 45
and recording these positions does not mean that the federal government is
endorsing them. Rather, it ensures that federal officials engaging in
consultation are aware of any relevant Aboriginal positions. Where there are
differing views, this can easily be flagged in ATRIS.
Return to footnote 45 referrer
- Footnote 46
in historic treaties where there are land surrender provisions, some Aboriginal
groups dispute the validity of extinguishment or assert that the language of
the treaties does not reflect the actual oral agreement of the parties at the
time of signing.
Return to footnote 46 referrer
- Footnote 47
Salmon/Carmacks First Nation at
paras. 61-62 & 67.
Return to footnote 47 referrer
- Footnote 48
For example, the lack of guidance has sometimes led
federal officials to attempt to apply concepts like strength of claim (which
only applies to asserted rights) or attempt to determine depth of consultation
according to common law principles when it is prescribed in the modern treaty. It has also led industry to request information on historic land use, which is
not relevant to assessing impacts as the geographic scope and extent of modern
treaty rights are governed by the treaty terms regardless of whether they align
with historic use or not.
Return to footnote 48 referrer
- Footnote 49
Government of Canada, The Government of Canada
takes action to establish an effective whole-of-government approach to modern
treaty implementation, July 13
Return to footnote 49 referrer
- Footnote 50
West Moberly First Nations v. British Columbia,  B. C. J. No. 942 (CA) at para. 151 ("West Moberly"). See also Chartrand v. British Columbia,  BCCA 345 (CA)
Return to footnote 50 referrer
- Footnote 51
There are some plain language versions of historic treaties in ATRIS but
the language and focus of these summaries could be simplified to clearly
explain in simple terms on what specific rights are recognized under the
treaty, the geographic scope of where each of the rights may be currently
exercised within the treaty settlement area with links to any information on
current land and fisheries use, any land surrender provisions, and any disputes
relating to these provisions. In some cases, ATRIS only provides a summary of
a series of treaties (i. e. Southern Ontario Treaties – 1764-1862) without
indicating which treaty or treaties the particular First Nation is party to or
providing a plain language summary of the specific treaties at issue.
Return to footnote 51 referrer
- Footnote 52
For example, there are several active cases in
litigation relating to the interpretation of historic treaties, including
Treaty 7, Treaty 9, the Robinson-Superior Treaty, and Treaty 72. However, not
all of the cases are in ATRIS. In addition, there is a lack of information in
ATRIS about treaty land entitlement agreements and asserted or acknowledged
unfulfilled obligations which can be raised in the context of consultation.
Return to footnote 52 referrer
- Footnote 53
Some First Nations with historic treaties assert additional Aboriginal
rights that they say were not surrendered by treaty, such as Aboriginal
hunting, trapping, fishing rights (if not addressed in the specific treaty) and
Aboriginal title to waterbeds. The issue of whether Aboriginal title can be
established to waterbeds has not been judicially considered to date in Canada.
Return to footnote 53 referrer
- Footnote 54
example, several courts interpreting Treaty 8 have relied upon additional
assurances provided by the Treaty Commissioners during treaty negotiations,
which were noted in their report to the Superintendent General of Indian
Affairs on September 22, 1899. See West Moberly; Mikisew Cree, and R. v. Badger,  1 S. C. R. 771 (SCC).
Return to footnote 54 referrer
- Footnote 55
For modern treaties, ATRIS currently contains a copy of the actual treaty
which is typically hundreds of pages long. With some exceptions, there are
generally no summaries on ATRIS of specific treaty rights that may be relevant
for consultation or easy to access maps of harvesting areas and treaty
settlement lands (without having to search through the treaties themselves). In
some cases, there are short overviews of the treaty or Excel spreadsheets of
treaty obligations but these spreadsheets were not created specifically for
consultation or organized in a helpful way for this purpose.
Return to footnote 55 referrer
- Footnote 56
of this include (i) requirements to consult even where there is no adverse
effect (ii) additional assessments required over and above the federal and
provincial environmental assessment regimes such as Chapter 10 in the Nisga'a
Final Agreement and (iii) treaties where the entity to consult varies
depending on the issue, such as the Nunavut Land Claim Agreement.
Return to footnote 56 referrer
- Footnote 57
There are several groups in Canada that assert
Aboriginal or treaty rights but are not formally recognized by the federal
government for a variety of reasons, such as the Passamaquoddy in New
Brunswick, Nunatukavut in Labrador, or the Hwiltsum First Nation in British
Columbia. Canada's approach to whether consultation is required with specific
unrecognized groups has been inconsistent within and among departments and
agencies to varying degrees.
Return to footnote 57 referrer
- Footnote 58
There are several First Nations that have maintained
traditional non-Indian Act governance systems such as the Wet'suwet'en
Hereditary Chiefs, the Gitxsan Hereditary Chiefs, and the Gitanyow Hereditary Chiefs
in northern British Columbia.
Return to footnote 58 referrer
- Footnote 59
this appeal, the appellants requested a declaration that "Métis and non-status Indians have the rights to be consulted and
negotiated with, in good faith, by the federal government on a collective basis
through representatives of their choice, respecting all their rights, interests
and needs as Aboriginal peoples. "The SCC declined to grant the requested
declaration because it lacked practical utility since several SCC decisions
"already recognized a context-specific duty to negotiate when Aboriginal rights
are engaged. " This is a much narrower legal principle than the requested
Return to footnote 59 referrer
- Footnote 60
Behn v. Moulton Contracting Ltd. ,  S. C. J. No. 26 (SCC) at para. 30.
Return to footnote 60 referrer
- Footnote 61
for example, Parks Canada, "The Land is Our Teacher – Reflections and
Stories with Aboriginal Knowledge Holders to Manage Parks Canada's Heritage
Places. " 2015.
Return to footnote 61 referrer
- Footnote 62
CEAA and Transport Canada guidance examines the degree of impact by looking at
the magnitude, extent, frequency, reversibility, probability of occurrence,
Aboriginal perspectives on the importance and uniqueness of a particular use,
and the level of confidence in the analysis.
Return to footnote 62 referrer
- Footnote 63
Rio Tinto at paras. 52-53.
Return to footnote 63 referrer
- Footnote 64
v. Canada (Minister of the Environment),  F. C. J. No. 1248 (FC) at para. 85 ("Adam"); West Moberly at paras. 117, 181, and 235-239; Fond du Lac Denesuline
First Nation v. Canada (Attorney General),  F. C. J. No. 330 (FCA) at
Return to footnote 64 referrer
- Footnote 65
For a further discussion of this point, see Andrea Bradley
and Michael McClurg, "Consultation and Cumulative Effects: Is there a role for
the duty to consult in address concerns about over development", OBA Aboriginal
Law Section, Volume 15, No. 3, July 2012.
Return to footnote 65 referrer
- Footnote 66
For example, in British Columbia, 94 per cent of the
land base is provincial Crown land while only 1 per cent is federal Crown
land. See British Columbia, Ministry of Agriculture and Lands, "Crown
Return to footnote 66 referrer
- Footnote 67
officials indicated that it is useful to have all parties at the table so they
hear the perspectives of each other and that DFO does not, in any event, have
the resources to do separate meetings in all instances. This is not to say
that DFO does not consult directly with Aboriginal groups as they do in many
Return to footnote 67 referrer
- Footnote 68
CNSC, REGDOC 3. 2. 2: Aboriginal Engagement
Return to footnote 68 referrer
- Footnote 69
and Climate Change Canada, Policy on Public Participation and Aboriginal
Return to footnote 69 referrer
- Footnote 70
Haida at para. 42; Halfway River at para. 161; Long Plain at para. 158. The advice on this issue in the Draft
Proponent Guidance should be revised. It states "ask potentially affected
Aboriginal groups how they wish to collaborate with your company". While
collaboration is desirable in many cases, it is not always achievable or even
desired by some Aboriginal groups. The direction should be for proponents to
ask how the Aboriginal groups want to be consulted.
Return to footnote 70 referrer
- Footnote 71
to the 2011 Guidelines, the protocols require Canada to provide "all relevant
information" and for the Aboriginal groups to respond "within a reasonable
period of time". This differs significantly from the approach taken by British
Columbia, which has detailed Strategic Engagement Agreements with specific
required steps and timelines depending on the classified level of decision.
Return to footnote 71 referrer
- Footnote 72
Government of Nova Scotia, Policy and Guidelines:
Consultation with the Mi'kmaq of Nova Scotia, April 2015, p. 21; Government of Saskatchewan, First
Nation and Métis Consultation Policy Framework, June 2010, pp.
11-12; Government of British Columbia, Updated Procedures for Meeting Legal
Obligations when Consulting First Nations, May 2010, p. 14.
Return to footnote 72 referrer
- Footnote 73
should be noted that concern was raised with the statement in the Draft
Proponent Guidance that "the nature and extent of information required by each
Aboriginal group may vary, as groups have differing levels of technical
capacity. "It was felt that this suggests a lesser level of disclosure is
required if an Aboriginal group lacked technical capacity. While this was
likely not the intent of the statement, this should be revised to reflect that
some Aboriginal groups may need additional information and capacity support
(financial or in-kind) to address technical capacity issues.
Return to footnote 73 referrer
- Footnote 74
relationships and transparency on the rationale for such decisions and short
notice may help to address concerns of Aboriginal groups in these situations.
Return to footnote 74 referrer
- Footnote 75
Little Salmon/Carmacks at paras. 12 & 35.
Return to footnote 75 referrer
- Footnote 76
Little Salmon/Carmacks at para. 39 and Taku River at para. 40.
Return to footnote 76 referrer
- Footnote 77
Brokenhead at para. 42.
Return to footnote 77 referrer
- Footnote 78
Hamlet of Clyde River v. TGS-NOPEC Geophysical Co. ASA (TGS),  F. C. J. No. 991 (FCA) at para. 65. This case is currently under appeal to the SCC.
Return to footnote 78 referrer
- Footnote 79
Yellowknives Dene First Nation v. Canada (Minister of Aboriginal Affairs and Northern Development),  F. C. J. No. 829 (CA), Brokenhead, and Adam.
Return to footnote 79 referrer
- Footnote 80
and spiritual impacts can be considered under CEAA 2012 but there are ongoing issues about how these
assessments should be conducted, how to properly incorporate Aboriginal
perspectives on impacts, and what appropriate accommodation measures are
available. CEAA recently issued draft technical guidance on this for comment. See Technical Guidance for Assessing the Current Use of Lands and Resources
for Traditional Purposes under the Canadian Environmental Assessment Act, 2012
Return to footnote 80 referrer
- Footnote 81
West Moberly at para. 106. Wahgoshig First Nation v. Ontario,  3 C. N. L. R. 317 (SCJ) at para. 41; Ross
River Dena Council v. Yukon,  Y. J. No. 123 (CA) at paras. 36-37.
Return to footnote 81 referrer
- Footnote 82
Mandate Letter from Prime Minister Justin Trudeau to the Minister of Natural Resources
Return to footnote 82 referrer
- Footnote 83
Mandate Letter from Prime Minister Justin Trudeau to
the Minister of Indigenous and Northern Affairs Canada, The federal government has announced five principles
that will guide its decision-making on major projects while the review of
Canada's environmental assessment process is underway. See Government of Canada Moves to Restore
Trust in Environmental Assessment
Return to footnote 83 referrer
- Footnote 84
For the Energy East Project, the federal government is
proposing to enhance its approach to Crown consultations, subject to further
discussions with Aboriginal groups. This would include appointing five
regional consultation coordinators (RCCs) that could meet regularly with
Aboriginal groups to discuss concerns relating to the project. The RCCs would
report to a Crown Consultation Lead in Ottawa. Subject to interest, the RCCs
could also meet with Aboriginal groups along with other federal government and
provincial government officials and/or the proponent.
Return to footnote 84 referrer
- Footnote 85
Mikisew Cree First Nation v. Canada,  F. C. J. 1308 (F. C. )
Return to footnote 85 referrer
- Footnote 86
example, INAC consulted with Aboriginal groups before the introduction of the Specific
Claims Tribunal Act, the Family Homes on Reserves and Matrimonial
Interests or Rights Act and the First Nations Control of First Nations
Education Act. While these processes and the underlying legislation have
been subject to substantial criticism by Aboriginal groups, there are lessons
that can be learned from these processes in terms of formulating best practices
Return to footnote 86 referrer
- Footnote 87
more detailed discussion of this issue, see the Report of the Cohen Commission
of Inquiry into the Decline of Sockey Salmon in the Fraser River, pp. 189-193
Return to footnote 87 referrer
- Footnote 88
Haida at para. 49; Adam at para. 88.
Return to footnote 88 referrer
- Footnote 89
Haida at para. 50.
Return to footnote 89 referrer
- Footnote 90
Mikisew Cree at para. 66.
Return to footnote 90 referrer
- Footnote 91
Tu First Nation v. Canada (Attorney General),  F. C. J. No. 327 (FC) at para. 121-123 ("Ka'a'Gee")
and Musqueam Indian Band v. British Columbia (Minister of Sustainable
Resource Management),  B. C. J. No. 444 (CA) at paras. 98, 100 &
Return to footnote 91 referrer
- Footnote 92
For reference, the Nova Scotia Policy and Guidelines: Consultation
with the Mi'kmaq includes a helpful chart of examples of possible
accommodation measures and who is responsible for these measures.
Return to footnote 92 referrer
- Footnote 93
Ka'a'Gee at para. 123; Adams Lake Indian Band v. British Columbia,  B. C. J. No. 1026 (SC) at para. 95-99.
Return to footnote 93 referrer
- Footnote 94
mitigation example of financing transportation to other similar sites where
traditional practices may be continued should be removed or qualified in some
way as this does not take into account preferred use and was not well received
by Aboriginal groups. Location is important for Aboriginal groups as it is for
non-Aboriginal people. See Mikisew
Cree at para. 47.
Return to footnote 94 referrer
- Footnote 95
2011 Guidelines does not discuss "meaningful consultation" in detail until page
13 and the Draft Public Statement affirms Canada's commitment to meaningful
consultation and accommodation but does not fully explain what this means or
what is expected. The Draft Proponent Guidance does not even discuss the concept
of meaningful consultation although it appears to be targeted at promoting it.
Return to footnote 95 referrer
- Footnote 96
Haida at paras. 53.
Return to footnote 96 referrer
- Footnote 97
for example, BC Environmental Assessment Office, Guide to Involving
Proponents When Consulting First Nations in the Environmental Assessment Process, December 2013, pp. 8 & 16-20.
Return to footnote 97 referrer
- Footnote 98
Nunatukavut at para. 300; Long Plain at para. 158; Halfway River at para. 161.
Return to footnote 98 referrer
- Footnote 99
See West Moberly at para. 149.
Return to footnote 99 referrer
- Footnote 100
there are compelling reasons to maintain confidentiality over this information,
including the potential to stifle productive negotiations, this confidentiality
is not without cost or consequence. The absence of this information can create
a challenging environment both for proponents and Aboriginal groups of widely
varying degrees of capacity in determining an appropriate negotiated outcome.
Return to footnote 100 referrer
- Footnote 101
The current MOU template should be enhanced to ensure
greater coordination on Aboriginal capacity building, strengthen accountability
measures for the joint federal-provincial or federal-territorial working groups
to ensure progress in meeting the MOU's objectives, and establish
sub-committees with Aboriginal and industry representatives in each province
and territory to provide advice on better aligning approaches to consultation
and accommodation and reducing unnecessary duplication.
Return to footnote 101 referrer
- Footnote 102
for example Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 
3 C. N. L. R. 221 (ON SCJ) at para. 27 ("Platinex"); Moulton Contracting
Ltd. v. British Columbia,  BCJ No. 2818 (BC SC) (reversed on other
grounds) at paras. 292 & 296.
Return to footnote 102 referrer
- Footnote 103
Platinex at para. 27. Justice Smith in this
decision found in this case that there was insufficient material before the
court to make an informed decision as to what level of funding would be
reasonable. However, Justice Smith imposed a consultation protocol which included
a provision that "Ontario will cover KI's reasonable costs in respect of the
herein consultation, which reasonable costs shall be based upon the timetables
and workplan or plans as agreed to by the parties…. "KI had rejected Ontario's
proposal of $150,000 as inadequate and sought over $600,000. Cited with
approval in Enge v. Northwest Territories,  NWTSC 33 (NWT SC) (on
Return to footnote 103 referrer
- Footnote 104
v. British Columbia, 
B. C. J. No 2556 (SC) at para. 194 and Moulton Contracting Ltd. V. British
Columbia,  B. C. J. No. 2818 (BC SC) (Reversed on other grounds) at
paras. 292 & 296.
Return to footnote 104 referrer
- Footnote 105
Adams Lake at paras. 96-101 and Nunatukavut at para. 214.
Return to footnote 105 referrer
- Footnote 106
guidance produced by some federal departments and agencies goes further than
the 2011 Guidelines on capacity funding. For example, Environment and Climate Canada's Policy on Public Participation and Aboriginal Consultation states that
"many Aboriginal peoples will require additional resources to participate
meaningfully in consultation processes. Managers should work with interested
and affected Aboriginal peoples to identify constraints that would prevent full
and effective participation, and to determine how these constraints can be most
reasonably addressed…"Parks Canada's Promising Pathways also states
that it is "important to ensure partnerships are properly resourced" and
recognize the time, effort and associated costs of Aboriginal participation.
Return to footnote 106 referrer
- Footnote 107
of Manitoba, Interim Provincial Policy for Crown Consultations with First
Nations, Métis Communities and Other Aboriginal Communities, p. 4;
Government of Manitoba, Crown-Aboriginal Consultation Participation Fund –
Community Guide, pp. 1 & 3. Although it does not require industry to
provide capacity funding, Saskatchewan's guidance indicates that it will
consider capacity support from proponents (including in-kind assistance) in
assessing the adequacy of consultation. In addition, Alberta has also enacted
the Aboriginal Consultation Levy Act which would impose a capacity levy on
industry to be redistributed to First Nations in that province. However, the
Notley government has committed to repealing this legislation due to the lack
of consultation prior to its implementation.
Return to footnote 107 referrer
- Footnote 108
of Newfoundland and Labrador, Aboriginal Consultation Policy on Land and
Resource Development Decisions, April 2013.
Return to footnote 108 referrer
- Footnote 109
Canadian Environmental Assessment Agency, Participant
Funding Program – National Program Guidelines, 2015
Return to footnote 109 referrer
- Footnote 110
Canadian Nuclear Safety Commission, Participant
Funding Program Guide, February 2011
Return to footnote 110 referrer
- Footnote 111
National Energy Board, Participant Funding Program
Guide, December 2014
Return to footnote 111 referrer
- Footnote 112
currently has consultation protocols with aggregates of First Nations in Nova
Scotia, New Brunswick, Prince Edward Island as well as the Métis Nation of
Ontario and the Algonquins of Ontario. See https://www.aadnc-aandc.gc.ca/eng/1331839216095/1331839363228
Return to footnote 112 referrer
- Footnote 113
also provides funding to Aboriginal organizations (and other non-Aboriginal
community and non-profit organizations) through programs like the Ecoaction
Community Funding Program and the Habitat Stewardship Program. The Ecoaction
Community Funding Program provides funding for projects that will protect,
rehabilitate or enhance the natural environment. The Habitat Stewardship
Program provides funding for projects that conserve and protect species at risk
and their habitats or prevent species from becoming a conservation concern.
Return to footnote 113 referrer
- Footnote 114
Indigenous and Northern Affairs Canada, First
Return to footnote 114 referrer
- Footnote 115
Tsilhqot'in at para. 91.
Return to footnote 115 referrer
- Footnote 116
New Zealand, Supporing UN Declaration restores NZ's
mana, April 20, 2010; US Statement Department, Announcement
of US Support for the United Nations Declaration on the Rights of Indigenous
Peoples; Minister Jenny Macklin, Statement on the
United Nations Declaration on the Rights of Indigenous Peoples; Aboriginal Affairs and Northern
Development Canada, Canada's Statement of Support on the United Nations
Declaration on the Rights of Indigenous Peoples, November 10, 2010.
Return to footnote 116 referrer
- Footnote 117
Community Council v. Canada, 
F. C. J. No. 969 (FC) at paras. 103-4 ("Nunatukavut"); Hupacasath First
Nation v. Canada (Minister of Foreign Affairs),  F. C. J. 927 (FC) at
para. 51; Snuneymuxw First Nation v. Board of Education – School District
#68,  B. C. J. No. 1343 (SC) at para. 59; Gitxaala Nation v. Canada,  F. C. J. No. 289 (FCA) at para. 16.
Return to footnote 117 referrer
- Footnote 118
Notes for the Honourable Carolyn Bennett to the UN Permanent Forum on
Indigenous Issues on May 10, 2016. It is important to underscore that this
new position will not affect existing Canadian law until the provisions of
UNDRIP are implemented by the federal government. It will also not impact
provincial or territorial government decision-making unless and until these
governments take steps to implement UNDRIP within their respective jurisdictions. Even then, the extent to which Canadian law may be substantively impacted will
depend on Canada's interpretation of the UNDRIP and the manner in which it
decides to carry out implementation.
Return to footnote 118 referrer
- Footnote 119
Bennett Clarifies Position on Implementing UNDRIP and FPIC, Northern Public
Affairs, May 4, 2016.
Return to footnote 119 referrer
- Footnote 120
Anaya, "Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous peoples", July 15, 2009, paras. 46-47
Return to footnote 120 referrer
- Footnote 121
Anaya, "Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous peoples", July 15, 2009, para. 48. See also
Megan Davis, "Indigenous Struggles in Standard Setting: The United Nations
Declaration on the Rights of Indigenous Peoples"  MelbJIIntLaw 17,
Melbourne Journal of International Law.
Return to footnote 121 referrer
- Footnote 122
28 of UNDRIP provides that "Indigenous peoples have the right to redress, by
means that can include restitution or, when this is not possible, just, fair
and equitable compensation, for the lands, territories and resources which they
have traditionally owned or otherwise occupied or used, and which have been
confiscated, taken, occupied, used or damaged without their free, prior and
informed consent. "
Return to footnote 122 referrer
- Footnote 123
Taku River at para. 2.
Return to footnote 123 referrer
- Footnote 124
Supreme Court has articulated three factors that aid in determining whether an
infringement has occurred: (i) is the action unreasonable (ii) does the action
impose undue hardship and (iii) does the action deny the rights-holders their
preferred means of exercising the right. See Sparrow; Tsilhqot'in
Nation at para. 122; Grassy Narrows at para. 52.
Return to footnote 124 referrer
- Footnote 125
Grassy Narrows at para. 52.
Return to footnote 125 referrer
- Footnote 126
This requires that (i) the incursion on Aboriginal
title cannot substantially deprive future generations of the benefit of the
land (ii) the incursion is necessary to achieve the Crown's objective (rational
connection) (iii) The Crown is going no further than necessary to achieve it
(minimal impairment) and (iv) the benefits that may be expected to flow from
that goal are not outweighed by adverse effects on the Aboriginal interest
(proportionality of impact).
Return to footnote 126 referrer
- Footnote 127
The cases have been resolved in one of three ways:(a)
new trial or further hearing was ordered because of the lack of evidence of
justification; (b) the Court found that there was no infringement of a s. 35
right and therefore did not consider justification or (c) the Court was not
satisfied that the government was pursuing a valid legislative objective and
thus did not complete the justification analysis. See Peter W. Hogg & Daniel Styler, "What Counts as
Justification Under Section 35?" January 13, 2015.
Return to footnote 127 referrer
- Footnote 128
Ahousaht Indian Band and Nation v. Canada,  B. C. J. No. 1406 (CA) (leave to appeal to SCC denied)
Return to footnote 128 referrer
- Footnote 129
The 2011 Guidelines provided limited guidance on what specifically
industry may be responsible for. It states in the Consultation Directive to
Guiding Principle No. 7 that Canada can "rely on its partners such as
Aboriginal groups, industry and provinces and territories, to carry out
procedural aspects of a consultation process (e. g. information sessions or
consultations with Aboriginal groups, mitigation measures and or other forms of
accommodation, etc. ). "
Return to footnote 129 referrer
- Footnote 130
Douglas Eyford, Forging Partnerships, Building Relationships, p. 36.
Return to footnote 130 referrer
- Footnote 131
There were some federal officials in this engagement who took the
position that Canada relies on proponents to fulfil certain aspects of the duty
to consult but does not delegate per se. In my view, this is a distinction
without a difference for Aboriginal groups and industry. Whether it is
reliance or delegation, there needs to be greater clarity and formality so all
parties can understand what is expected. Any use of the term "delegation" in
this report and its recommendations should be read to include any reliance on
proponents, regardless of whether there is formal delegation.
Return to footnote 131 referrer
- Footnote 132
For example, British Columbia
does not consult with the Métis whereas Canada does.
Return to footnote 132 referrer
- Footnote 133
2011 Guidelines do provide a series of questions that departments and agencies
need to consider before they decide whether or not and to what extent they will
rely on third parties for consultation in general but these questions do not
consider the capacity of individual proponents or provide any direction on
continued Crown oversight.
Return to footnote 133 referrer
- Footnote 134
This includes a lack of sufficient guidance particularly outside of
the major projects context, a lack of federal capacity, insufficient
information sharing, the absence of a mechanism to ensure that issues that go
beyond the mandates of departments and agencies are appropriately dealt with.
Return to footnote 134 referrer
- Footnote 135
The limited senior level oversight within INAC on consultation and
accommodation and the lack of authority of INAC's Consultation and
Accommodation Unit to ensure that all sectors of INAC fully implement the duty
to consult was noted in a November
2014 Audit of Consultation and Accommodation of the Audit Assurance
Services Branch of INAC. See https://www.aadnc-aandc.gc.ca/eng/1427813070494/1427813119878.
Return to footnote 135 referrer
- Footnote 136
There would be issues with
assigning this authority to MPMO given its existing mandate which is limited to
major projects. Many consultation issues fall outside of the major projects
context and this is where greater oversight is most needed.
Return to footnote 136 referrer