Using The Toolbox
The Toolbox is a source for ideas that may help you, the referrals practitioner, to improve your effectiveness and efficiency in responding to Crown land referrals. The Toolbox is not, however, a substitute for a referrals response strategy developed with community leaders in consultation with community members and, where appropriate, legal counsel. Nor is it a substitute for a comprehensive claim of Aboriginal Rights and Title. Ideally, particular referral responses build on a platform of general information already provided to the Crown as formal notice of your asserted Aboriginal Rights and Title within your traditional territory.
A detailed response to every referral that comes in the door may not be the most effective way for your Nation to achieve its goals and protect your Nation’s Aboriginal Rights and Title. Consider the value of developing protocols, agreements or procedures that allow government or development interests to fulfill their duty to consult with your Nation on mutually acceptable terms.
Only your Nation can decide what the best approach is for your Nation.
The Toolbox, therefore, should be used with caution. Please read the following tips on how to get the most out of the tools provided on this website:
- The Toolbox is NOT intended to provide legal advice. It is prudent to seek advice on any particular matters that are of concern to you, especially in cases where a development proposal is significant and has potential to impact your Aboriginal rights and title claims. To minimize legal fees, consider drafting referral responses yourself, and having them reviewed by a lawyer to ensure your legal interests are protected. Wherever possible, seek advice of lawyers who work in the field of aboriginal law. Not all referrals will require you to rally the troops in developing a response – choose your battles. Focus on the issues that matter most to your community.
- Don’t use the guide for developing a response as a template. This may sound contradictory. However, the response letter guide is provided to be more of a check-list, to offer suggestions on language and to help you reflect on possible content for your own responses. Please don’t use it as a “fill in the blank” letter for all your responses – in so doing, you may weaken your position.
- Network to build on what has worked elsewhere. This includes talking with neighbouring Nations, networking through existing alliances, and developing a dialogue with other referrals practitioners throughout the province to help leverage the success of other people’s work.
- On key issues which may end up going to court, provide as much information to the governments as possible to show evidence of your rights or title. Be strategic and do not send out confidential information, but provide enough information to allow the courts to conclude the governments should have known the area was important to your Nation and could be the subject of a rights and title claim.
- On key issues consider asking the governments to respond in writing as to whether or not they accept your Nation has evidence of rights and title. The more decisions the governments put in writing, the more opportunities there are to challenge these decisions in court.
- Track all correspondence and communications and maintain a good filing system. You may need documentation to resolve disputes later or as evidence in court.
- Every referral is unique, requiring a unique approach in responding. However, consistency in your position is important. Develop similar responses to similar issues.
- Develop the skills and capacity in your community to be able to effectively evaluate development proposals. Where necessary seek expertise outside of your community.
- Continually work to develop a good information base to help in decision making. This may include gathering traditional use and occupation evidence, oral histories or baseline wildlife and resource data.
- Establish a referral flowchart to document a clear internal process for action and decision making on referrals that is appropriate to the governance structures of your First Nation. A clear process will improve your response time and effectiveness, while still maintaining good consultation with your community. (For a sample referral response procedure flowchart, see Appendix F of the Response Letter Guide)
- Realistically assess and plan for the human resources required to properly respond to referrals. For an average-sized First Nation, this may be a full time position. In all forums, request capacity funding from the Crown to support your participation in consultations.
- Consider developing protocol agreements with the licensees operating in your territory. These agreements may include a financial contribution agreement to help cover your costs in responding to referrals.
- Don’t get discouraged. It can be a frustrating exercise to work in this field. Yet it still provides a good opportunity to make your First Nation’s voice and concerns heard.