(Content of this story courtesy of The Borneo Project.
The Impact of Recent Decisions on the Duty to Consult & the Determination of Aboriginal Rights
This paper was prepared by Barbara Fisher, Blake, Cassels & Graydon LLP, for the Continuing Legal Education course materials Aboriginal Law Conference-2002, March, 2002 and is reproduced with permission.
The Crown's duty to consult with a First Nation about Crown regulation or activity that affects the First Nation arises from a variety of legal sources. The first source emerges from the Crown's historical fiduciary relationship with aboriginal people. The common law duty, given constitutional protection under the Constitution Act, 1982, has been expanded to include a duty to consult about possible infringements of s. 35(1) rights. In addition, a statutory regime may set out specific duties to consult within the context of an approval process, government policy may establish consultation guidelines and finally, the rules of natural justice and administrative fairness also dictate to some degree the extent of the duty to consult.
The historical fiduciary relationship has been primarily between the federal Crown and aboriginal people. However, more recently, courts have identified a similar relationship between the provincial Crown and the aboriginal peoples of the province. The scope of this fiduciary relationship and the duties arising from it are still being defined through litigation.
Provincial jurisdiction over lands and resources, and provincial regulation and activity on Crown land has resulted in more frequent conflicts between First Nations' aboriginal rights and interests, the provincial Crown and third parties. According to recent authority from the B.C. Court of Appeal, the province does not have the constitutional jurisdiction to authorize any official, decision-maker or tribunal to determine the aboriginal rights of any First Nation. However, the province may still infringe aboriginal rights through valid provincial laws and regulations provided such infringement is justified. Only a court may ultimately determine whether a First Nation has aboriginal rights, what the scope of such rights are, whether there has been an infringement in any particular case and if so, whether such infringement is justified.
While there are as yet no court decisions defining the nature and scope of any First Nation's aboriginal rights, the Crown has a considerable amount of information about British Columbia First Nations' interests, since over 2/3 of these First Nations have been in the treaty process since 1994. Therefore, the Crown should be in a position to reasonably assess assertions of aboriginal rights in any particular case.
In addition to being a key element in the infringement and justification analysis, consultation is a practical requirement. However, because of the limitations on the province's jurisdiction, it must consult only about possible infringements of aboriginal rights and about the First Nation's interests (outside the constitutional context) in the lands or resources at issue.
The content of the Crown's duty to consult has not changed substantially over the past number of years. Regardless of the legal source of the duty, the province has for a long time been required, from a practical and economic perspective, to consult with First Nations about the use of resources in their traditional territories.
The consultation exercise essentially requires the following elements:
- The Crown fully informing the First Nation about the proposed regulation, permit, approval or activity;
- The First Nation fully informing the Crown about its assertion of rights, traditional practices, interests and concerns;
- The Crown assessing the First Nation's assertion of aboriginal rights and the scope of those rights;
- The Crown considering its fiduciary obligations to the First Nation and the possibility that its proposed action might infringe aboriginal rights;
- The Crown considering the First Nation's interests in the affected area;
- The Crown seriously considering alternative courses of action to address the First Nation's interests and to avoid possibly infringing its aboriginal rights.
In the writer's view, the courts have not done an adequate job of providing clear direction about the duty to consult that is conducive to achieving certainty or negotiated settlements. The courts have not clearly delineated the content of the duty to consult stemming from fiduciary, constitutional, common law or statutory requirements. Many decisions focus on the constitutional justification analysis, which is one element (albeit an important one) of consultation, but an element that creates a more adversarial environment for negotiation. Other cases focus on administrative law issues of procedural fairness, with varying results depending on the scrutiny of analysis. It is not clear whether a comprehensive statutory consultation regime that considers the Crown's fiduciary, constitutional and common law duties is sufficient for all purposes. Finally, the courts appear to separate process from substance. This is problematic, because the substance of a right in issue is relevant in determining the appropriate process to consult about activities that may affect that right.
By David Carruthers and Bo Reid
The Heiltsuk Geographic Information Systems (GIS) Department was developed by the Heiltsuk Treaty Office in 1995. It is a great example of how First Nation Peoples can build capacity within their communities. By developing local skills and utilizing local resources, the Heiltsuk Nation is directly investing in the health of the community for today and the future.
Bo Reid is the manager of the Heiltsuk GIS Department. Through three years of training, he has had the opportunity to develop the necessary skills to manage various research projects that directly benefit the Heiltsuk in many areas such as:
- Linking information gaps between the different research departments, including fisheries, forestry and the cultural education centre;
- Producing maps that support the Heiltsuk Tribal Council, Heiltsuk Hemas (hereditary chiefs) and research directors in analyzing datasets for decision-making;
- Developing maps that are used as educational tools for community members and Heiltsuk youth;
- Storing information and networking with other First Nations to better utilize information & refine skills.
The Heiltsuk First Nation recognizes the importance to protect and preserve their resources on all levels. Through various research initiatives and economic opportunities, the Heiltsuk, strive to find independence and self-sufficiency.
|One project of particular interest has been the Heiltsuk Map Atlas, a series of 40 maps illustrating the physical, biological and cultural assets of the territory. It includes maps on tourism, wildlife values, culturally modified trees and legend sites. The atlas also brings together many government-prepared datasets, interpreting them from a Heiltsuk perspective and updating them where necessary with local knowledge.||
"We felt that it was important to become familiar with government data and to be able to interpret and amend it according to our OWN needs"
"We felt that it was important to become familiar with government data and to be able to interpret and amend it according to our OWN needs", says Bo Reid. "The atlas gives us an opportunity to assess the information we have to date, and gives us a better understanding of some of the gaps that exist in this body of knowledge. We can then go to the community and work on filling these gaps".
Reid recognizes the value in bringing a Heiltsuk voice to the atlas. He has been frustrated with many outside consultants and researchers trying to interpret Heiltsuk values. "Doing the work at home allows us to interpret the information from a Heiltsuk perspective, as oppose to having someone come into our community and try to think from a Heiltsuk perspective, which doesn't work".
"Doing the work at home allows us to interpret the information from a Heiltsuk perspective"
The atlas is atool that the Heiltsuk can use at all levels, whether it be foreducation, research initiatives or for simply cataloging information forfuture generations. Showcased here on the Aboriginal Mapping Network isone map from the forest series of the atlas.
Click on map to see larger version
In the four corners of the map, you will see the four crests of the Heiltsuk Nation: the Eagle, the Raven, the Killer Whale, and the Wolf. Designed by local artist Walden Marty Windsor, these crests represent the hereditary structure of the Nation. Presented on the maps, these crests help to ground the work in the community and to show respect to the Chiefs.
From an information management perspective, this project has helped to organize, store and archive information in an efficient way. And it has also been a learning process.
"One of the most important things we've learned is the power of networking with other First Nations and organizations who have already worked on similar projects. This helps to avoid duplication and build important relationships in this field", says Reid. "You also have to have a vision of how the final product will be used. This helps you prepare the data according to the end needs. For example, if it's to be used an as educational tool, it has to incorporate data that is accessible to youth."
|Click on maps to see larger version|
The atlas project is a success, and its success is in no small way attributed to the dedication to the project by Bo Reid and the Heiltsuk leadership.
"I think commitment is a big factor in the success of projects. Despite the closure of our treaty office, our community has recognized the value of our mapping office and has kept the mapping office alive. This is one small step in how we are rebuilding our Nation" says Bo Reid.
A conference review by Kira Gerwing