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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? W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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.” W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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” W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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 W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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) W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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 W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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…” W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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 W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS 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 W OODW ARD & COMPANY LAW YERS LLP | BARRISTERS & SOLICITORS