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Duty to Consult, Reconciliation
and Economic Development
Frameworks
Metis Nation
Economic Development Policy Forum
Vancouver BC March 17, 2017
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OUR LAND IS OUR LIFE
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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
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THE LEGAL FRAMEWORK:
DUTY TO CONSULT
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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.
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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)
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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)
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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)
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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.
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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)
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RECONCILIATION
WITH THE METIS NATION
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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
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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
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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
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Goals
• assessment of possible infringements by
Crown decisions/actions
• minimize impacts on Mi’kmaq rights/title
• accommodation
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Roles and Responsibilities
• Mi’kmaq
– one point of entry – receives consultation
requests
– communicates concerns/impacts and provides
information to proponents, Province and
Federal Government
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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
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FULL IMPLEMENTATION OF
UNDRIP: DTC
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UNDRIP / ADRIP / ILO Convention
post-colonial thinking and action
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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
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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)
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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.
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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.
…
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UNDRIP / ADRIP / ILO Convention
the legal framework of free, prior and
informed consent
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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)
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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)
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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
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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.
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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….
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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.
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UNDRIP and NEB
MODERNIZATION
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IMPLEMENTATION OF UNDRIP
a case in point: National Energy Board
Modernization
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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
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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
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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
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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?
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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)
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NATION-TO-NATION
MECHANISMS
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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
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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)
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Presentation by:
Kyle P. Vermette
VERMETTE LAW
and
Kathy L. Hodgson-Smith
HODGSON-SMITH LAW
Advisors to Metis National Council