Download Limits of the Haida Consultation(PPTX

Limits of the Haida Consultation
Framework in promoting
Reconciliation
Presentation by Dominique Nouvet for the
Maliseet Unity Conference March 15-16, 2017
Fredericton, New Brunswick
LAW YERS
LLP
Overview of Presentation
– Meaning of Reconciliation
– Positive aspects of Haida Consultation and
Accommodation Framework (2004 SCC 73)
– Why Haida framework insufficient for achieving
reconciliation
– What more transformative work must the Crown
and Aboriginal peoples pursue to foster and
achieve reconciliation?
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What is “reconciliation”?
– Recurring Supreme Court of Canada explanation: “the
reconciliation of the pre-existence of aboriginal societies
with the sovereignty of the Crown: Delgamuukw, supra, at
para. 186, quoting Van der Peet, supra, at para. 31. ”
(Haida Nation, para. 17)
– SCC in Mikisew Cree First Nation at para. 1: “The
fundamental objective of the modern law of aboriginal and
treaty rights is the reconciliation of aboriginal peoples and
non-aboriginal peoples and their respective claims,
interests and ambitions.”
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What is “reconciliation”?
• Truth and Reconciliation Commission (Vol 6 p. 11) : “The
Commission defines reconciliation as an ongoing process of
establishing and maintaining respectful relationships. A
critical part of this process involves repairing damaged trust
by making apologies, providing individual and collective
reparations, and following through with concrete actions
that demonstrate real societal change.”
• Professor Mark Walters defines reconciliation as a
relationship, which “involves sincere acts of mutual
respect, tolerance and goodwill that serve to heal rifts and
create the foundations for a harmonious relationship”
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Positive Aspects of Haida Framework
– Haida decision significantly expanded & shifted the
Crown-Aboriginal relationship
– It does not define section 35 rights, but it is a framework
that requires Crown to factor asserted section 35 rights
into account in decision making about lands and resources
– Mikisew extended the Haida duty to consult and
accommodate prior to making decisions that could affect
established treaty rights such as Maliseet, Mi’kmaq and
Passamaquoddy Peace and Friendship Treaty rights
– Hundreds of accommodation agreements between BC
government and First Nations since Haida decision
– Also brings proponents to the table
– Many EAs more rigorous as a result of consultation
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Limitations of Haida in Fostering
Reconciliation
– SCC recognized in Haida decision itself that
consultation would not fulfill the constitutional
promise of section 35.
– Court described the duty as “part of a process of
fair dealing and reconciliation that begins with the
assertion of sovereignty and continues beyond
formal claims resolution.” (para. 32, emphasis
added)
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Limitations of Haida in Fostering
Reconciliation
1. Consultation focusses on impacts of new
decisions
2. Consultation occurs project by project
3. Consultation does not require Crown to
fundamentally change its approach to
Environmental Assessments
4. Duty to consult does not require securing
Aboriginal consent for project/decision
5. Crown retains high level of discretion over
accommodation for projects it approves
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Paths to Reconciliation
1. Litigation
2. Negotiated Shifts in Crown Aboriginal Relationships
SCC in Haida (para. 38): “…consultation and
accommodation before final claims resolution, while
challenging, is not impossible, and indeed is an essential
corollary to the honourable process of reconciliation
that s. 35 demands pending claims resolution and
fosters a relationship between the parties that makes
possible negotiations, the preferred process for
achieving ultimate reconciliation…”
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Relationship-Building that Promotes
Reconciliation
 Modern comprehensive treaties (not proving to be the best path for
most BC First Nations)
 Reconciliation Agreements (prompted by a major project or projects,
but measures beyond project-specific accommodations and seek to
build better Crown-Aboriginal working relationship on matters of
mutual interest/concern)
 Collaborative Decision-Making Agreements (might be in relation to EA
process, significant forestry decisions, or a broad range of Crown land
and resource decisions, co-management of parks, or could involve the
collaborative development of a regional land use plan)
 Sector specific agreements (e.g. fisheries, forestry, mining) that
include shared high level principles or vision for the sector,
collaborative decision-making including in development of higher level
resource management plans, improved benefit sharing with and/or
economic opportunities for Aboriginal groups
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Relationship-Building that Promotes
Reconciliation
 Foundation Agreement (25 year agreement to
incrementally build working relationship on key
issues, transfer lands, jurisdiction over lands and
other key matters, and transfer forestry
opportunities to First Nation)
 Treaty Renewal Plan (no modification of rights;
concrete plan for respecting and protecting historic
treaty rights)
Conclusion
– Haida consultation and accommodation is a big
improvement over the previous lack of CrownAboriginal engagement, but it will not lead to
reconciliation
– Transformative work toward reconciliation will be
challenging
– Time, effort, financial resources, creativity, good faith,
honest communication, adequate mandates from
Aboriginal and Crown governments are all essential
– This work is centuries overdue in New Brunswick,
required by our Constitution and international human
rights principles, and ultimately stands to benefit
Aboriginal and non-Aboriginal citizens
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