Engagement with First Nations, Métis, and Inuit Groups with regards to Consultation and Accommodation Prepared for the Congress of Aboriginal Peoples By.

Engagement with First Engagement with First Nations, Métis, and Inuit Nations, Métis, and Inuit Groups with regards to Groups with regards to

Consultation and Consultation and AccommodationAccommodation

Prepared for the Congress of Prepared for the Congress of Aboriginal PeoplesAboriginal Peoples

By Alexandre Clément and By Alexandre Clément and

Pierre Cloutier de RepentignyPierre Cloutier de Repentigny

Outline of PresentationOutline of Presentation

► Background on the project and methodologyBackground on the project and methodology►Glossary of termsGlossary of terms►Historic context leading up to the duty to Historic context leading up to the duty to

consultconsult►General policy questions regarding General policy questions regarding

ConsultationConsultation► Specific policy reviews and analysisSpecific policy reviews and analysis► Best Practices CAP could incorporate into a Best Practices CAP could incorporate into a

future national policy position future national policy position ► Conclusion.Conclusion.

BackgroundBackground

►CAP proposed to develop a national CAP proposed to develop a national policy position paper on the Crownpolicy position paper on the Crown’s ’s duty to consultduty to consult on behalf of its off- on behalf of its off-reserve representative organizations.reserve representative organizations.

►CAP also proposed to research, CAP also proposed to research, identify and summarize different policy identify and summarize different policy positions on this question.positions on this question.

Board meeting and Board meeting and discussionsdiscussions

►CAP board of directors met in January CAP board of directors met in January to review and comment on a draft to review and comment on a draft policy position paper developed by the policy position paper developed by the researchers who were hired.researchers who were hired.

Presentation to BoardPresentation to Board

► Historical Context of the Crown’s duty to consultHistorical Context of the Crown’s duty to consult► Definitions of Honour of the Crown, fiduciary duty Definitions of Honour of the Crown, fiduciary duty

and duty to consult and accommodationand duty to consult and accommodation► Brief overview of Supreme Court cases and CAP Brief overview of Supreme Court cases and CAP

affiliate casesaffiliate cases► Brief overview of Federal and provincial policies: Brief overview of Federal and provincial policies:

QuebecQuebec► Brief reminder of CAP position on the international Brief reminder of CAP position on the international

side of the question: UN Declaration on Indigenous side of the question: UN Declaration on Indigenous Rights.Rights.

► Open discussion was heldOpen discussion was held

Therefore.....Therefore.....

►Today we will be presenting Today we will be presenting the results of the substantial the results of the substantial academic research completed academic research completed by the researchers on the by the researchers on the general and specific policy general and specific policy questions provided to CAP by questions provided to CAP by OFI.OFI.

Outcome of CAP Board Outcome of CAP Board meeting meeting

► CAP Board of Directors identified additional issues and CAP Board of Directors identified additional issues and concerns with respect to the duty to consult. These will be concerns with respect to the duty to consult. These will be expressed in this presentation and in the final report.expressed in this presentation and in the final report.

► HOWEVERHOWEVER

► the overwhelming position of the CAP board of directors the overwhelming position of the CAP board of directors was that it was not possible to develop a national policy was that it was not possible to develop a national policy position at this time simply because there was no adequate position at this time simply because there was no adequate opportunity (time and resources) given to hold meaningful opportunity (time and resources) given to hold meaningful consultations within their communities.consultations within their communities.

ANDAND

► This research may serve as a foundation upon which This research may serve as a foundation upon which CAP may eventually build their national policy position.CAP may eventually build their national policy position.

► The best practices presented as recommendations at The best practices presented as recommendations at the end of the power point and final report represent the end of the power point and final report represent the minimum standards already accepted by the the minimum standards already accepted by the Canadian Courts, some provincial governments, Canadian Courts, some provincial governments, industry policies and in the international arena.industry policies and in the international arena.

► The researchers have ventured to add some additional The researchers have ventured to add some additional policy recommendations for CAP that may or may not policy recommendations for CAP that may or may not ultimately be reflected in the CAP National Policy ultimately be reflected in the CAP National Policy Position.Position.

Research Methodology: Research Methodology: Academics and AuthorsAcademics and Authors

► Review of the main doctrine including well Review of the main doctrine including well known academics and authors to answer known academics and authors to answer general policy questions provided to CAP by general policy questions provided to CAP by OFI:OFI:

► National:National: J. Timothy S. McCabe, James I. Reynolds, Joseph J. Timothy S. McCabe, James I. Reynolds, Joseph

Eliot Magnet, Dwight A. Dorey, Arbour, S. Eliot Magnet, Dwight A. Dorey, Arbour, S. Grammond, Peggy Blair, Thomas Isaac, Robert Grammond, Peggy Blair, Thomas Isaac, Robert Mainville, John Provart, John Currie, Heather L. Mainville, John Provart, John Currie, Heather L. Treacy, Tara L. Campbell, Jamie D. Dickson.Treacy, Tara L. Campbell, Jamie D. Dickson.

► International: International: James Anaya, William F. Felice, Richard Falk.James Anaya, William F. Felice, Richard Falk.

Research Methodology: Experts Research Methodology: Experts in Aboriginal issuesin Aboriginal issues

Sophie Thériault (University of Ottawa)Sophie Thériault (University of Ottawa) Sébastien Grammond (University of Sébastien Grammond (University of

Ottawa)Ottawa) Dwight Newman (University of Dwight Newman (University of

Saskatchewan)Saskatchewan)

Policy review for specific Policy review for specific questionsquestions

►Federal government policy Federal government policy paper;paper;

►A selection of Provincial A selection of Provincial governments’ policy papers;governments’ policy papers;

►Industry policy position ;Industry policy position ;►Environmental assessment Environmental assessment

review of policy.review of policy.

Methodology: summaries and Methodology: summaries and final reportfinal report

►Summaries of significant policy Summaries of significant policy information from the various information from the various sources was synthesized and will sources was synthesized and will be included in the final report and be included in the final report and annexes.annexes.

►The final report will include best The final report will include best practices and recommendations practices and recommendations for CAP.for CAP.

Defining the termsDefining the terms

► It is important for CAP affiliates to have It is important for CAP affiliates to have clear definition of the terms being clear definition of the terms being reviewed in order to be on an equal reviewed in order to be on an equal starting foot and on the same page starting foot and on the same page when embarking on future negotiations when embarking on future negotiations and consultations.and consultations.

► The following definitions have been The following definitions have been extracted from the doctrinal review, extracted from the doctrinal review, are compatible with case law, and are compatible with case law, and international standards. international standards.

Glossary of terms: Honour of the Glossary of terms: Honour of the CrownCrown

► Honour of the CrownHonour of the Crown

““It is the concept of holding the Crown to high It is the concept of holding the Crown to high standards of honourable dealing with respect to the standards of honourable dealing with respect to the Aboriginal peoples of Canada”.Aboriginal peoples of Canada”.[1] The principle of The principle of the Honour of the Crown comes from the “special the Honour of the Crown comes from the “special trust relationship and the responsibility of the trust relationship and the responsibility of the government vis-à-vis Aboriginal peoples”government vis-à-vis Aboriginal peoples”[2]..

► Sources: Royal Proclamation, the Constitution, off shoots: Sources: Royal Proclamation, the Constitution, off shoots: fiduciary duty and duty to consultfiduciary duty and duty to consult

[1] J. Timothy S. McCabe, J. Timothy S. McCabe, The Honour of the Crown and its Fiduciary Duties to the Aboriginal PeoplesThe Honour of the Crown and its Fiduciary Duties to the Aboriginal Peoples , , (Markham: LexisNexis, 2008) at 54.(Markham: LexisNexis, 2008) at 54.

[2] [2] Ibid.Ibid., p. 59, p. 59

Glossary of terms: Fiduciary Glossary of terms: Fiduciary dutyduty

« That where by statute, agreement or « That where by statute, agreement or perhaps by unilateral undertaking, one perhaps by unilateral undertaking, one party has an obligation to act for the benefit party has an obligation to act for the benefit of another, and that obligation carried with of another, and that obligation carried with it a discretionary power, the party thus it a discretionary power, the party thus empowered becomes a fiduciary. Equity will empowered becomes a fiduciary. Equity will then supervise the relationship by holding then supervise the relationship by holding him to the fiduciary’s strict standard of him to the fiduciary’s strict standard of conduct. »conduct. »

Source: A Breach of Duty, James I. ReynoldsSource: A Breach of Duty, James I. Reynolds

Characteristics of Fiduciary Characteristics of Fiduciary dutyduty

► It is inherent to the Honour of the Crown.It is inherent to the Honour of the Crown.

► It is a fiduciary relationship between the It is a fiduciary relationship between the government (the fiduciary) and the Aboriginal government (the fiduciary) and the Aboriginal peoples (the beneficiary).peoples (the beneficiary).

► Decision-making should be made with the Decision-making should be made with the best interest of the Aboriginal peoples at best interest of the Aboriginal peoples at heart.heart.

Glossary of terms: Consultation Glossary of terms: Consultation

► In short, it is the process in which the In short, it is the process in which the government must consider Aboriginal government must consider Aboriginal peoples’ interests and opinions peoples’ interests and opinions regarding a certain question.regarding a certain question.

Characteristics of Characteristics of ConsultationConsultation

► The principle of consultation varies from the “The principle of consultation varies from the “discussion discussion in good faith with the intention of substantially in good faith with the intention of substantially addressing the concerns of the aboriginal people to addressing the concerns of the aboriginal people to practice significantly deeper than mere consultation practice significantly deeper than mere consultation sometimes extending to the full consent of an aboriginal sometimes extending to the full consent of an aboriginal nationnation””[1]. .

► The level of consultation required will vary from one The level of consultation required will vary from one situation to another, going from the simple disclosure of situation to another, going from the simple disclosure of information, notice and discussion to the modification of information, notice and discussion to the modification of the project and/or accommodation of Aboriginal peoples. the project and/or accommodation of Aboriginal peoples.

[1] J. Timothy S. McCabe, The Honour of the Crown and its Fiduciary Duties to J. Timothy S. McCabe, The Honour of the Crown and its Fiduciary Duties to the Aboriginal Peoples, (Markham: LexisNexis)the Aboriginal Peoples, (Markham: LexisNexis),, 2008, p.111. 2008, p.111.

Accommodation Accommodation

► The principle of accommodation is “The principle of accommodation is “to adapt, to adapt, harmonize, reconcile, to suit a special or harmonize, reconcile, to suit a special or different purpose, a settlement or a different purpose, a settlement or a compromisecompromise””[1]. .

► A compromise is “A compromise is “an attempt to harmonize an attempt to harmonize conflicting interests and move further down conflicting interests and move further down the path of reconciliationthe path of reconciliation”.”.[2]

[1] IbidIbid., p. 127.., p. 127.[2] [2] IbidIbid., p. 127.., p. 127.

Importance of historical Importance of historical contextcontext

► It is important for CAP National office and It is important for CAP National office and affiliates to have a solid understanding of the affiliates to have a solid understanding of the historical background of the duty to consult. historical background of the duty to consult.

► It is important to be fully informed of the latest It is important to be fully informed of the latest developments and policies that have emerged developments and policies that have emerged in order to develop a future national policy in order to develop a future national policy position in the best interest of the CAP position in the best interest of the CAP constituency.constituency.

Timeline of important cases Timeline of important cases regarding the Duty to consultregarding the Duty to consult

17631763

Royal Royal ProclamatioProclamatio

nn

Guérin Guérin

19841984

19901990

SparrowSparrow

Delgamuukw Delgamuukw 19971997

20042004

Haida NationHaida Nation

Taku RiverTaku River

20042004

20052005

MikisewMikisew20012001

New New Brunswick Brunswick Aboriginal Aboriginal PeoplesPeoples

Labrador Labrador Métis NationMétis Nation

20072007

20072007

Native Council Native Council of Nova Scotiaof Nova Scotia

Supreme Court Supreme Court of Canadaof Canada

CAP AffiliatesCAP Affiliates

Historic Context leading to the Historic Context leading to the obligation to consultobligation to consult

►Royal ProclamationRoyal Proclamation – 1763 – 1763 Prohibition of private purchases of Prohibition of private purchases of

Aboriginal lands;Aboriginal lands; Such lands could only be acquired by the Such lands could only be acquired by the

Crown (after a public meeting had been Crown (after a public meeting had been held).held).

Protective goal of the Royal ProclamationProtective goal of the Royal Proclamation::►Protection of the Aboriginal people from fraud Protection of the Aboriginal people from fraud

and the abuses from settlers.and the abuses from settlers.►Creation of a trust-like relationship between Creation of a trust-like relationship between

the Crown and the Aboriginal people.the Crown and the Aboriginal people.

Historic Context leading to the Historic Context leading to the obligation to consult obligation to consult (continued)(continued)

► The The Political Trust DoctrinePolitical Trust Doctrine:: This doctrine comes from a line of cases affirming This doctrine comes from a line of cases affirming

that when the Crown is called a “trustee”, it is a that when the Crown is called a “trustee”, it is a trustee in the political sense.trustee in the political sense.

Therefore, the Crown is responsible in the political Therefore, the Crown is responsible in the political arena but not in the Court.arena but not in the Court.

The courts can only make the Crown liable for its The courts can only make the Crown liable for its legal obligations and not for its political ones.legal obligations and not for its political ones.

St. Catherine’s Milling and Lumber Co.St. Catherine’s Milling and Lumber Co. – The – The special treatment of Aboriginal people does not special treatment of Aboriginal people does not come from a legal obligation, but rather from a come from a legal obligation, but rather from a “sacred political” one.“sacred political” one.

Historic Context leading to the Historic Context leading to the obligation to consult obligation to consult (continued)(continued)

GuérinGuérin (Supreme Court of Canada - 1984)(Supreme Court of Canada - 1984): :

► Concept of Concept of FiduciaryFiduciary DutyDuty to replace the to replace the Political Trust Doctrine.Political Trust Doctrine.

► Indian’s interest in their land is a pre-Indian’s interest in their land is a pre-existing legal right.existing legal right.

►When an Indian band surrenders reserve When an Indian band surrenders reserve land to the Crown, a fiduciary duty is land to the Crown, a fiduciary duty is created.created.

►Not consulting with a band before taking a Not consulting with a band before taking a decision regarding reserve lands is a breach decision regarding reserve lands is a breach of the fiduciary duty.of the fiduciary duty.

Sparrow: Sparrow: Supreme Court of Canada Supreme Court of Canada – 1990– 1990

►Government has the responsibility to act in Government has the responsibility to act in a fiduciary capacity with respect to a fiduciary capacity with respect to Aboriginal people.Aboriginal people.

► This comes from the historic power and This comes from the historic power and responsibility of the Crown over the responsibility of the Crown over the Aboriginal peopleAboriginal people

► The Fiduciary Obligation of the government The Fiduciary Obligation of the government imposes some restraint on their exercise of imposes some restraint on their exercise of sovereign power.sovereign power.

Delgamuukw: Delgamuukw: Supreme Court of Supreme Court of Canada – 1997Canada – 1997

► The Crown should always keep in mind the The Crown should always keep in mind the interests of Aboriginal people in developing interests of Aboriginal people in developing territory policies.territory policies.

► Fiduciary duty changes depending on the Fiduciary duty changes depending on the context and facts of each situation.context and facts of each situation.

►With the Fiduciary duty comes the duty to With the Fiduciary duty comes the duty to consult.consult.

► To not consult = breach of Fiduciary duty.To not consult = breach of Fiduciary duty.► Presence of breach? = Fair compensation is Presence of breach? = Fair compensation is

needed to keep the Honour and good faith needed to keep the Honour and good faith of the Crown.of the Crown.

Haida Nation: Haida Nation: Supreme Court of Supreme Court of Canada – 2004Canada – 2004

► Brought the duty to consult to a new extent.Brought the duty to consult to a new extent.► This duty comes from the Honour of the Crown.This duty comes from the Honour of the Crown.► This duty arises when the Crown has knowledge This duty arises when the Crown has knowledge

of the possible existence of an Aboriginal right.of the possible existence of an Aboriginal right.► Affects both provincial and federal governments Affects both provincial and federal governments

(no third parties).(no third parties).► Good faith on both sides is required. Good faith on both sides is required. ► Each case must be approached on a case-by-case Each case must be approached on a case-by-case

basis basis (criteria further developed in this presentation).(criteria further developed in this presentation).

Taku River: Taku River: Supreme Court of Supreme Court of Canada – 2004Canada – 2004

► The principle of the Honour of the Crown must be The principle of the Honour of the Crown must be given full effect in order to promote the process given full effect in order to promote the process of reconciliation by s. 35(1) of the Constitution of reconciliation by s. 35(1) of the Constitution Act, 1982. Act, 1982. (a full interpretation and not a narrow one).(a full interpretation and not a narrow one).

► The Crown needs to consult meaningfully and in The Crown needs to consult meaningfully and in good faith and make changes to its plans based good faith and make changes to its plans based on the information that emerged from the on the information that emerged from the consultation.consultation.

► There is no duty to agree, only a duty to consult.There is no duty to agree, only a duty to consult.

Mikisew: Mikisew: Supreme Court of Canada – Supreme Court of Canada – 20052005

► The Honour of the Crown is inherent to The Honour of the Crown is inherent to every treaty and to the performance of every treaty and to the performance of every treaty obligation.every treaty obligation.

► The Honour of the Crown imposes a The Honour of the Crown imposes a obligation to disclose all pertinent obligation to disclose all pertinent information to the Aboriginal people in a information to the Aboriginal people in a timely way and to consider the views and timely way and to consider the views and opinions of the Aboriginal people and, opinions of the Aboriginal people and, wherever possible, integrate them into the wherever possible, integrate them into the proposed plan of action. proposed plan of action.

New Brunswick Aboriginal Peoples Council New Brunswick Aboriginal Peoples Council v. New Brunswick:v. New Brunswick: New Brunswick Court of New Brunswick Court of

Queen’s Bench – 2001Queen’s Bench – 2001

► Ministry failedMinistry failed to to provide exact location of provide exact location of boundaries and reasons for decision (hunting right).boundaries and reasons for decision (hunting right).

► New trial was ordered.New trial was ordered.► The Aboriginal group in question did not have The Aboriginal group in question did not have

sufficient evidence to prove that all of its members sufficient evidence to prove that all of its members were of Aboriginal ancestry.were of Aboriginal ancestry.

► Had they been able to prove it, there would have Had they been able to prove it, there would have been a duty to consult.been a duty to consult.

► It must be taken into consideration that this case It must be taken into consideration that this case was decided prior to the was decided prior to the Haida NationHaida Nation case. The case. The criteria hadn’t been established. criteria hadn’t been established.

Lower Court decisionsLower Court decisions

►The following cases were brought forth The following cases were brought forth by CAP affiliates.by CAP affiliates.

►There is a change of position towards There is a change of position towards more flexibility post Haida Nation, more flexibility post Haida Nation, Taku River and Mikisew.Taku River and Mikisew.

Native Council of Nova Scotia v. Native Council of Nova Scotia v. Canada:Canada: Federal Court – 2007Federal Court – 2007

►Decision on ministry of fisheriesDecision on ministry of fisheries to limit to limit permitted lobster catch.permitted lobster catch.

► Applicant claims breach of fiduciary duty.Applicant claims breach of fiduciary duty.►Not all of the members of the group were of Not all of the members of the group were of

proven Aboriginal ancestry, thus the duty to proven Aboriginal ancestry, thus the duty to consult could not apply to the group.consult could not apply to the group.

► Action dismissed.Action dismissed.

Groundbreaking decision from a Groundbreaking decision from a provincial Appeal Courtprovincial Appeal Court

►This case will have a direct impact on a This case will have a direct impact on a future nation policy position taken by future nation policy position taken by CAP.CAP.

►Labrador Métis Nation v. Newfoundland Labrador Métis Nation v. Newfoundland & Labrador & Labrador (Newfoundland and (Newfoundland and Labrador Court of Appeal – 2007)Labrador Court of Appeal – 2007)

Labrador Métis Nation v. Newfoundland & Labrador Métis Nation v. Newfoundland & LabradorLabrador (Newfoundland and Labrador Court of (Newfoundland and Labrador Court of

Appeal – 2007)Appeal – 2007)

►LMN participated in a public LMN participated in a public environmental assessment process environmental assessment process regarding the construction of a highway.regarding the construction of a highway.

►LMN requested documents on wetland LMN requested documents on wetland and watercourse crossings, and adequate and watercourse crossings, and adequate time to comment them.time to comment them.

►The Minister of Transportation and Works The Minister of Transportation and Works and the Minister of Environment and and the Minister of Environment and Conservation denied the LMN request.Conservation denied the LMN request.

The court said…The court said…

► The Crown had the duty to consult and accommodate The Crown had the duty to consult and accommodate the Métis. It had to provide LMN (Labrador Métis the Métis. It had to provide LMN (Labrador Métis Nation) with the requested documents.Nation) with the requested documents.

► The duty to consult exists regardless of how the LMN The duty to consult exists regardless of how the LMN identity their members (Inuit or Métis), the trial judge identity their members (Inuit or Métis), the trial judge cannot define the identity of an aboriginal group. cannot define the identity of an aboriginal group.

► When the identity is not clear, the Crown must do a When the identity is not clear, the Crown must do a dual-analysis (as Métis right and as an Inuit right in dual-analysis (as Métis right and as an Inuit right in this case) to see if the duty exists.this case) to see if the duty exists.

► In the present case, the evidence was not sufficient In the present case, the evidence was not sufficient to prove an Inuit right, but it was to prove a Métis to prove an Inuit right, but it was to prove a Métis right.right.

Situating the caseSituating the case

►On the On the Spectrum of ConsultationSpectrum of Consultation, , the present situation would be the present situation would be located on a low level of located on a low level of consultation because the proof of consultation because the proof of the right was weak and the the right was weak and the impacts are small.impacts are small.

►LMN only wanted to be provided LMN only wanted to be provided with the proper information and with the proper information and the Crown should have allowed it.the Crown should have allowed it.

Two important points from the Two important points from the LMN case:LMN case:

►An aboriginal organization can defend An aboriginal organization can defend the rights of its members in court as the rights of its members in court as long as the members are in general long as the members are in general agreement (in this case, it was agreement (in this case, it was mentioned in the LMN constitution mentioned in the LMN constitution measures to protect the rights of the measures to protect the rights of the community could be taken).community could be taken).

Ex: Manitoba Métis FederationEx: Manitoba Métis Federation

Point number 2Point number 2

►An aboriginal group does not need to An aboriginal group does not need to ethnically identify its members ethnically identify its members definitively before the Crown’s duty to definitively before the Crown’s duty to consult and accommodate arises. consult and accommodate arises.

►““It is sufficient to assert a credible It is sufficient to assert a credible claim that member of a group belong claim that member of a group belong to aboriginal people within section 35 to aboriginal people within section 35 of the 1982 Constitution.”of the 1982 Constitution.”

Impact of decision for future Impact of decision for future CAP policy positionCAP policy position

►CAP may follow the LMN decision and CAP may follow the LMN decision and suggest the government relax the burden suggest the government relax the burden of proof in cases of duty to consult. of proof in cases of duty to consult.

►CAP national office and/or affiliates should CAP national office and/or affiliates should not have to definitively ethnically identify not have to definitively ethnically identify its members in order for the Crown’s duty its members in order for the Crown’s duty to consult to be triggered.to consult to be triggered.

►CAP would suggest that the government CAP would suggest that the government take the same policy position.take the same policy position.

General policy questions General policy questions regarding Consultationregarding Consultation

CAP researchers based part of their study on specific CAP researchers based part of their study on specific questions provided by OFI. They have adapted the questions provided by OFI. They have adapted the

information collected in the review of the doctrine to fit information collected in the review of the doctrine to fit to CAP’s specific situation. These findings reflect to CAP’s specific situation. These findings reflect minimum standards already generally accepted. minimum standards already generally accepted.

What could consultation be from What could consultation be from CAP’s perspective?CAP’s perspective?

►Consultation is the process in which Consultation is the process in which the government must consider CAP’s the government must consider CAP’s interests and opinions regarding issues interests and opinions regarding issues of concern to them.of concern to them.

► It is an obligation of the Crown.It is an obligation of the Crown.

►Both parties must participate in the Both parties must participate in the process in good faith. process in good faith.

What are the generally accepted What are the generally accepted triggers to the duty to consult?triggers to the duty to consult?

► Two things must be established in order to Two things must be established in order to trigger consultation trigger consultation (criteria)(criteria)::

The “at-first-sight” proof of the appearance of an The “at-first-sight” proof of the appearance of an aboriginal right or title (no need for the right to aboriginal right or title (no need for the right to be entirely proven);be entirely proven);

The project of action put forward by the The project of action put forward by the government has impacts on the aboriginal right government has impacts on the aboriginal right or title in question (the slightest of impact will or title in question (the slightest of impact will suffice, no need for the impact to be irreparable). suffice, no need for the impact to be irreparable). This will bring a spectrum of consultation.This will bring a spectrum of consultation.

Triggers that would be specific Triggers that would be specific to CAP’s unique situationto CAP’s unique situation

►As soon as the government is As soon as the government is contemplating areas affecting CAP’s contemplating areas affecting CAP’s constituency, the duty is triggered.constituency, the duty is triggered.

How would CAP assess the strength How would CAP assess the strength of its own claim in a practical of its own claim in a practical

mannermanner►By using the same By using the same ““spectrumspectrum””

developed by the courts and generally developed by the courts and generally accepted by the doctrine as a pre-accepted by the doctrine as a pre-assessment tool to answer their own assessment tool to answer their own question as to whether there exists is a question as to whether there exists is a duty to consult.duty to consult.

►CAP could then notify the government CAP could then notify the government of the existence of a right warranting of the existence of a right warranting the duty to consult.the duty to consult.

Spectrum of consultationSpectrum of consultation

Weak proof of the Weak proof of the rightright

+ Small impacts + Small impacts

LOWLOW level of level of consultationconsultation

Solid proof of the rightSolid proof of the right

+ Irreparable impacts+ Irreparable impacts

HIGHHIGH level of level of consultation, possibility consultation, possibility of the need to of the need to accommodateaccommodate

A wide spectrum A wide spectrum of consultation, of consultation, depending on the depending on the proof of the right proof of the right and the impacts.and the impacts.

From From LOWLOW to to HIGHHIGH levels of levels of consultationconsultation

What is accommodation: What is accommodation: Minimum standard for CAP & Minimum standard for CAP &

affiliatesaffiliates► To accommodate is to change a plan that has been To accommodate is to change a plan that has been

established and that was deemed inacceptable by established and that was deemed inacceptable by another party as to better fit the requirement of the said another party as to better fit the requirement of the said party.party.

► Accommodation is required when the damages to the Accommodation is required when the damages to the right are important and/or irreparable.right are important and/or irreparable.

► In order to determine the level of accommodation In order to determine the level of accommodation required a simple question must be answered: required a simple question must be answered: “What “What must the Crown do in order to maintain its Honour? must the Crown do in order to maintain its Honour? ””

► The consultation process is necessary in order to The consultation process is necessary in order to establish if accommodation is required, and if so, to establish if accommodation is required, and if so, to what level.what level.

When can accommodation be When can accommodation be expected?expected?

► Once again depending on the importance of the Once again depending on the importance of the impacts, accommodation might require more from impacts, accommodation might require more from the government.the government.

Ex: if the project in question is the construction of a road, Ex: if the project in question is the construction of a road, the government might bring modifications to the plan and the government might bring modifications to the plan and change the location of the road. If the road cannot be change the location of the road. If the road cannot be relocated, the government will have to give financial relocated, the government will have to give financial compensation to the Aboriginal people.compensation to the Aboriginal people.

Ex2: Another way to accommodate the Aboriginal People Ex2: Another way to accommodate the Aboriginal People would be to give them some of the financial benefits of the would be to give them some of the financial benefits of the project (parts of the revenues of the projects, or promise project (parts of the revenues of the projects, or promise the hiring of Aboriginal people in the project).the hiring of Aboriginal people in the project).

Third Parties and CAP’s Third Parties and CAP’s position position

► Although there is no duty to consult for third Although there is no duty to consult for third parties, the Crown may delegate procedural parties, the Crown may delegate procedural aspects of consultation, therefore possibly aspects of consultation, therefore possibly including the third parties to a project in the including the third parties to a project in the consultation process.consultation process.

► CAP may consider stating in a future policy CAP may consider stating in a future policy position that third parties should participate position that third parties should participate more actively in the consultation since they more actively in the consultation since they often have a substantial investment of time often have a substantial investment of time and money in the projects being developed. and money in the projects being developed.

What is capacity and what are the What is capacity and what are the policy implications for CAP? policy implications for CAP?

► Capacity is: Capacity is: the ability or power to do, the ability or power to do, experience, or understand something (Oxford experience, or understand something (Oxford dictionary)dictionary)

► For CAP, building capacity necessarily requires For CAP, building capacity necessarily requires additional financing from the government to additional financing from the government to hire and train individuals in the many issues of hire and train individuals in the many issues of concern to CAP’s constituents. These concern to CAP’s constituents. These individuals would be permanent staff.individuals would be permanent staff.

► The goal of building capacity is to, eventually, The goal of building capacity is to, eventually, be be self-sufficientself-sufficient and self-governed. and self-governed.

What advantages could capacity bring What advantages could capacity bring to CAP? to CAP?

► Long-term capacityLong-term capacity::

Provides beneficial tools for CAP for a long period Provides beneficial tools for CAP for a long period of time (as opposed to the short-term capacity of time (as opposed to the short-term capacity which provides the tools for one consultation which provides the tools for one consultation process only)process only)

Lightens the procedural steps leading to the Lightens the procedural steps leading to the actual consultation (because CAP will not have to actual consultation (because CAP will not have to ask the government for funds in order to finance ask the government for funds in order to finance each and every new consultation process.each and every new consultation process.

Capacity - exampleCapacity - example

► A project requires the hiring of an A project requires the hiring of an anthropologist. If the government provides anthropologist. If the government provides funding for one specific project, CAP can hire funding for one specific project, CAP can hire the anthropologist for that one project alone, the anthropologist for that one project alone, it’s short-term capacity. it’s short-term capacity.

► If CAP is provided sufficient funding so they can If CAP is provided sufficient funding so they can train their own anthropologists (long-term train their own anthropologists (long-term capacity), the organization will not have to capacity), the organization will not have to request financing every time a new project request financing every time a new project arises and the expertise of an anthropologist is arises and the expertise of an anthropologist is required. CAP will be more independent. Long-required. CAP will be more independent. Long-term capacity is therefore preferred to short-term capacity is therefore preferred to short-term capacity.term capacity.

CAP’s future policy could CAP’s future policy could include elements from include elements from

customary international law customary international law and the UN Declaration on and the UN Declaration on

Indigenous RightsIndigenous Rights

ILO 169 and Human Rights: James Anaya ILO 169 and Human Rights: James Anaya (Royal Commission on Aboriginal Peoples)(Royal Commission on Aboriginal Peoples)

► The normative parameters of the duty to The normative parameters of the duty to consult are found in international standards consult are found in international standards including the IL0 Convention No. 169.including the IL0 Convention No. 169.

► Canada is not a party to Convention 169, Canada is not a party to Convention 169, but it is bound to customary international but it is bound to customary international law. The character of Canada’s obligation is law. The character of Canada’s obligation is also a function under the United Nations also a function under the United Nations Charter and international human rights Charter and international human rights conventions to which Canada is a party. conventions to which Canada is a party.

International standards International standards (Anaya)(Anaya)

►Viewed comprehensively, Canada’s Viewed comprehensively, Canada’s contemporary fiduciary obligation and contemporary fiduciary obligation and duty to consult under customary and duty to consult under customary and conventional international law entails conventional international law entails securing for Aboriginal peoples the full securing for Aboriginal peoples the full enjoyment of their human rights and their enjoyment of their human rights and their right to self-determination, including their right to self-determination, including their social welfare and development and the social welfare and development and the right to be consulted.right to be consulted.

ILO Convention (Richard Falk)ILO Convention (Richard Falk)

► The Convention imposes on states the duty to The Convention imposes on states the duty to uphold the aspirations of Indigenous peoples, uphold the aspirations of Indigenous peoples, through the medium of consultation.through the medium of consultation.

►Many scholars now agree that much of the Many scholars now agree that much of the Convention No. 169 is declaratory of existing Convention No. 169 is declaratory of existing or emergent customary international law, or emergent customary international law, thereby forming a part of Canada’s fiduciary thereby forming a part of Canada’s fiduciary obligation to Aboriginal peoples.obligation to Aboriginal peoples.

International perspective on International perspective on consultationconsultation

► United Nations Declaration on the Rights of United Nations Declaration on the Rights of Indigenous PeopleIndigenous People (2007) (2007)

It recognized the principle of consultation in its It recognized the principle of consultation in its articlearticle 38:38:

““States in consultation and cooperation with Indigenous States in consultation and cooperation with Indigenous people, people, shall take the appropriate measures, shall take the appropriate measures,

including legislative including legislative measures to achieve the ends of this measures to achieve the ends of this DeclarationDeclaration.”.”

The principle of consultation is also recognized in The principle of consultation is also recognized in other articles of the Declaration with regards to such other articles of the Declaration with regards to such subjects as culture, labor and land agreements.subjects as culture, labor and land agreements.


► The principle of consultation with Aboriginal people The principle of consultation with Aboriginal people can be found at many occasions in the can be found at many occasions in the United Nation United Nation Declaration on the Right of Indigenous PeopleDeclaration on the Right of Indigenous People..[1]

► It was adopted by the UN General Assembly by an It was adopted by the UN General Assembly by an overwhelming majority (143 in favor, 4 against, 11 overwhelming majority (143 in favor, 4 against, 11 abstentions).abstentions).

► This declaration is considered by the international This declaration is considered by the international community and CAP as a customary international community and CAP as a customary international law.law.

► Some norms in the declaration are even considered Some norms in the declaration are even considered Jus CogensJus Cogens (imperative international rule). (imperative international rule).

[1] Preamble, Article 15, 17, 30, 36 and 38. Preamble, Article 15, 17, 30, 36 and 38.


► This was recognized and explained in the This was recognized and explained in the Maya VillageMaya Village case by the Supreme Court of case by the Supreme Court of Belize. Belize.

► In Canada, customary international law is In Canada, customary international law is applicable if it is not expressly and applicable if it is not expressly and irreconcilably in contrary with Canadian Law. irreconcilably in contrary with Canadian Law.

► Also, Human Rights Treaties (even if they Also, Human Rights Treaties (even if they are not ratified by Canada) can be used to are not ratified by Canada) can be used to interpret our national policy on the same interpret our national policy on the same subject.subject.


►Since the UN declaration concerns Since the UN declaration concerns human rights and since there is no law human rights and since there is no law expressly in contrary with the expressly in contrary with the declaration, in fact the Canadian declaration, in fact the Canadian constitution recognizes aboriginal constitution recognizes aboriginal rights, the Declaration should and may rights, the Declaration should and may be be used to interpret and define the be be used to interpret and define the duty to consult as it applies to CAP and duty to consult as it applies to CAP and its affiliate organizationsits affiliate organizations

Reminder (Richard Falk –Royal Reminder (Richard Falk –Royal Commission)Commission)

► It is now widely appreciated that the It is now widely appreciated that the Universal Declaration of Human Universal Declaration of Human Rights, which is now accepted widely Rights, which is now accepted widely as incorporated into international law as incorporated into international law in the most authoritative form as in the most authoritative form as embodying peremptory norms or embodying peremptory norms or jus jus cogenscogens, was not regarded in any sense , was not regarded in any sense as an obligatory instrument at the as an obligatory instrument at the time it was adopted. time it was adopted.

Incorporating International Incorporating International Perspective into future CAP Perspective into future CAP

policypolicy► CAP could incorporate the principles of CAP could incorporate the principles of

these declarations and conventions as a these declarations and conventions as a foundation for its future policy position foundation for its future policy position because they are much broader in scope because they are much broader in scope than the minimum standards adopted in than the minimum standards adopted in Canada at this time.Canada at this time.

► As explained, the government of Canada is As explained, the government of Canada is bound under these Human Rights principles. bound under these Human Rights principles. The government should therefore take a The government should therefore take a progressive stand in regards to consultation.progressive stand in regards to consultation.

Specific policy reviews Specific policy reviews and analysisand analysis

Specific policy reviews: Federal Specific policy reviews: Federal guideline for consultationguideline for consultation

► Aboriginal Consultation and Accommodation Aboriginal Consultation and Accommodation – Interim Guidelines for Federal Officials to – Interim Guidelines for Federal Officials to fulfill the Legal duty to consultfulfill the Legal duty to consult

►Developed in February 2008Developed in February 2008► Lengthy document of 58 pagesLengthy document of 58 pages► Table of contents: 25 subtitles – none of Table of contents: 25 subtitles – none of

which directly apply to CAP constituentswhich directly apply to CAP constituents

Federal Government policy : Federal Government policy : Points of importance to CAPPoints of importance to CAP

► The Crown should remember that political The Crown should remember that political organizations are not necessarily the rights organizations are not necessarily the rights holders although they may be authorized to holders although they may be authorized to speak on behalf of them. speak on behalf of them.

► The role of such organizations may be unique The role of such organizations may be unique when dealing with Métis claimant groups (CAP)when dealing with Métis claimant groups (CAP)

► There may also be good policy reasons to There may also be good policy reasons to consider including political organizations in consider including political organizations in consultation plans as they may be able to consultation plans as they may be able to provide information as to who may represent provide information as to who may represent the particular group of rights holders that may the particular group of rights holders that may be adversely impacted.be adversely impacted.

Policy for Off-reserve Policy for Off-reserve consultationsconsultations

► Although the federal policy speaks of aboriginal Although the federal policy speaks of aboriginal organizations, the words off-reserve are organizations, the words off-reserve are nowhere to be found in the document.nowhere to be found in the document.

► This is a serious lacuna that needs to be This is a serious lacuna that needs to be addressed. Off-reserve should not be excludedaddressed. Off-reserve should not be excluded

► Why? Corbière principles: off-reserve residency Why? Corbière principles: off-reserve residency is an analogous prohibited ground of is an analogous prohibited ground of discrimination to those listed in s. 15(1) of the discrimination to those listed in s. 15(1) of the Charter. Charter.

► CAP future policy position would likely CAP future policy position would likely expressly mention off-reserve and request expressly mention off-reserve and request equal consultation rights (on-off reserve).equal consultation rights (on-off reserve).

More policy needed…More policy needed…

►The federal government could develop The federal government could develop a separate a separate detaileddetailed policy with respect policy with respect to off-reserve, non-status and Métis as to off-reserve, non-status and Métis as their needs are unique and different their needs are unique and different from the other groups mentioned in s. from the other groups mentioned in s. 35 of the Constitution.35 of the Constitution.

►This policy should be in This policy should be in plain languageplain language for all community members to for all community members to understand.understand.

CAP future policy may suggest CAP future policy may suggest Extending consultation….Extending consultation….

►Government policy should extend further than Government policy should extend further than the “legal duty to consult” to other areas of the “legal duty to consult” to other areas of concern such as health, education, legislation…concern such as health, education, legislation…

►Why? Why? In order to avoid very costly litigation because the In order to avoid very costly litigation because the

question is still ambiguous and being challenged in question is still ambiguous and being challenged in the courts. $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$the courts. $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

In order to be consistent with the principle of the In order to be consistent with the principle of the Honour of the Crown and international Human Honour of the Crown and international Human Rights principles.Rights principles.

Quebec provincial policy: These Best Practices Quebec provincial policy: These Best Practices could be incorporated in a future CAP national could be incorporated in a future CAP national

position paperposition paper

► The Quebec policy suggests:The Quebec policy suggests:

The creation of the “Aboriginal Affairs coordinator” The creation of the “Aboriginal Affairs coordinator” and the “Interministerial support group”. and the “Interministerial support group”.

Consultation should be done with band councils Consultation should be done with band councils and not with individuals, which would take up too and not with individuals, which would take up too much time).much time).

Third parties might be asked to be included if they Third parties might be asked to be included if they want to. want to.

The creation of a financial support group to assist The creation of a financial support group to assist Aboriginal people in participating in consultation Aboriginal people in participating in consultation process.process.

Plain language Plain language

►All documents addressed to aboriginal All documents addressed to aboriginal people should have an approach that is people should have an approach that is easy to understand. easy to understand.

► If a request is made for the translation If a request is made for the translation of a document, then the government of a document, then the government should have that text translated in a should have that text translated in a clear, understandable and plain clear, understandable and plain language (English, French, Native language (English, French, Native language).language).

Living near a reserveLiving near a reserve

►Finally, one of the criteria for the right Finally, one of the criteria for the right to consultation is, as the government to consultation is, as the government states, “living near a reserve”. states, “living near a reserve”.

►This opens the doors for consultation This opens the doors for consultation to CAP off-reserve constituents.to CAP off-reserve constituents.

Québec Policy on LegislationQuébec Policy on Legislation

►This duty applies to everything This duty applies to everything governmental in the drafting, planning governmental in the drafting, planning and elaboration of statutes and and elaboration of statutes and regulations to the actual planned regulations to the actual planned activities. activities.

Applying Québec Policy to CAP’s Applying Québec Policy to CAP’s PerspectivePerspective

► The Québec Policy on consultation reflects The Québec Policy on consultation reflects the international perspective presented the international perspective presented earlier, and CAP could incorporate the earlier, and CAP could incorporate the requirement of proper consultation on requirement of proper consultation on legislation into their future policy.legislation into their future policy.

► Example: CAP and affiliates should be Example: CAP and affiliates should be consulted on new legislation to replace consulted on new legislation to replace section 6 of the Indian Act that defines who section 6 of the Indian Act that defines who is an Indian (McIvor decision).is an Indian (McIvor decision).

Third Parties : IndustriesThird Parties : Industries

►Although there is no duty to consult for Although there is no duty to consult for third parties, the Crown may delegate third parties, the Crown may delegate procedural aspects of consultation, procedural aspects of consultation, therefore possibly including the third therefore possibly including the third parties to a project in the consultation parties to a project in the consultation process.process.

Industry: DeBeersIndustry: DeBeers

► De Beers Canada policy:De Beers Canada policy:

Aboriginal people should receive adequate information on a Aboriginal people should receive adequate information on a project and they should be provided with enough time to project and they should be provided with enough time to evaluate the situation themselves and to provide response. evaluate the situation themselves and to provide response.

The informative aspect of the process would include The informative aspect of the process would include supplying the aboriginal people with sufficient detail and supplying the aboriginal people with sufficient detail and explanation of this information to allow a meaningful explanation of this information to allow a meaningful understanding of the whole situation. All of this information understanding of the whole situation. All of this information should be presented in an understandable manner.should be presented in an understandable manner.

In order to be meaningful, the consultation process should In order to be meaningful, the consultation process should lead to the inclusion of the Aboriginal people’s input on the lead to the inclusion of the Aboriginal people’s input on the issue. The project, if necessary, might have to be changed issue. The project, if necessary, might have to be changed to better accommodate the arguments of the aboriginal to better accommodate the arguments of the aboriginal people.people.

DeBeersDeBeers

►The corporation believes that projects The corporation believes that projects must benefit and add to the must benefit and add to the sustainability of local communities. sustainability of local communities. Therefore the involvement of Therefore the involvement of Aboriginal people will be important in Aboriginal people will be important in the employment of the people or in the employment of the people or in the economical development of the the economical development of the area surrounding the project.area surrounding the project.

IndustryIndustry

►BP Canada Energy Company:

The discussion and consultation should take place The discussion and consultation should take place at the very early stages of the entire project.at the very early stages of the entire project.

These processes should be directed toward issues These processes should be directed toward issues relating to aboriginal people and, in the long run, relating to aboriginal people and, in the long run, should be beneficial to everyone. The information should be beneficial to everyone. The information given to the aboriginal people should be delivered given to the aboriginal people should be delivered in a timely fashion in order to give them proper in a timely fashion in order to give them proper time to respond to the proposed plan.time to respond to the proposed plan.

BP CanadaBP Canada

►BP Canada believes in the better BP Canada believes in the better education of Aboriginal People, in the education of Aboriginal People, in the economical development of aboriginal economical development of aboriginal businesses and proposes plans of businesses and proposes plans of action to better improve the life of action to better improve the life of aboriginal people in the surrounding aboriginal people in the surrounding region.region.

CAP on IndustryCAP on Industry

► It could be advantageous for CAP to It could be advantageous for CAP to include some of the progressive include some of the progressive positions of specific corporations into positions of specific corporations into their future national policy position. their future national policy position.

Canadian Environmental Canadian Environmental Assessment ActAssessment Act

►The newly amended Canadian The newly amended Canadian Environmental Assessment Act and its Environmental Assessment Act and its section 16.1 states that the authorities section 16.1 states that the authorities MAY consider the aboriginal traditions MAY consider the aboriginal traditions and knowledge while conducting an and knowledge while conducting an environmental assessment. environmental assessment.


► In the policy position the government states In the policy position the government states that the consideration of aboriginal traditional that the consideration of aboriginal traditional knowledge “will not discharge any fiduciary knowledge “will not discharge any fiduciary duties of consultation that may arise”. duties of consultation that may arise”.

► The government also states that this The government also states that this consideration process should be dealt with on consideration process should be dealt with on a case-by-case basis and that a “one-size-fit-a case-by-case basis and that a “one-size-fit-all” approach to this situation is simply all” approach to this situation is simply unthinkable. unthinkable.


►General principals of the process:General principals of the process: The government should work with the The government should work with the

aboriginal in the early stage of the process.aboriginal in the early stage of the process. The government should provide The government should provide

comprehensive, accurate and clear comprehensive, accurate and clear information to the aboriginal.information to the aboriginal.

Translation should be provide if needed.Translation should be provide if needed. The government should get the written The government should get the written

consent of the community to use the consent of the community to use the knowledge it provided.knowledge it provided.

Researchers’ comment on Researchers’ comment on Canadian Environmental Canadian Environmental

Assessment ActAssessment Act

►The The Canadian Environmental Canadian Environmental Assessment ActAssessment Act should explicitly should explicitly consider aboriginal interests in the consider aboriginal interests in the assessment process in addition to assessment process in addition to traditional knowledge.traditional knowledge.

CAP incorporating principles of CAP incorporating principles of Canadian Environmental Canadian Environmental Assessment ActAssessment Act policy policy

►CAP could include a detailed policy on CAP could include a detailed policy on environmental assessment.environmental assessment.

► In a future policy, CAP could include In a future policy, CAP could include clauses specifically referring to clauses specifically referring to traditional knowledge and the traditional knowledge and the consideration of aboriginal interests.consideration of aboriginal interests.

Conclusion on Duty to Conclusion on Duty to ConsultConsult

► There is a general corpus of subject-There is a general corpus of subject-matters covered by the Honour of the matters covered by the Honour of the Crown that is considered binding on the Crown that is considered binding on the government of Canada. These include the government of Canada. These include the fiduciary duty and the duty to consult. fiduciary duty and the duty to consult.

► The Crown has legal duty to consult CAP The Crown has legal duty to consult CAP and affiliates who represent Aboriginal and affiliates who represent Aboriginal Peoples and according to the interpretation Peoples and according to the interpretation of standards have been set by Courts and of standards have been set by Courts and international law and advanced by authors international law and advanced by authors and aboriginal advocates. and aboriginal advocates.


►However, the government of However, the government of Canada has an interest in Canada has an interest in consulting with CAP outside the consulting with CAP outside the legal duty established by the legal duty established by the Canadian Courts and international Canadian Courts and international Law. Law.

►For reasons of compliance with the For reasons of compliance with the Canadian Constitution and Canadian Constitution and international law.international law.


►The status of Aboriginal rights under The status of Aboriginal rights under Canadian law, including consultation, is Canadian law, including consultation, is in flux. There is more changes to come. in flux. There is more changes to come.

►CAP and affiliates have specific needs CAP and affiliates have specific needs that should be considered in a policy that should be considered in a policy separate from other groups.separate from other groups.

Suggestions from researchers to CAP for Suggestions from researchers to CAP for consideration in a future national policy consideration in a future national policy

positionposition

1.1. Meaningful consultations should be held at the Meaningful consultations should be held at the community level in order to develop a community level in order to develop a representative national policy position. representative national policy position.

2.2. Ensure that sufficient time and resources should be Ensure that sufficient time and resources should be allocated for this purpose.allocated for this purpose.

3.3. A tool incorporating the Spectrum of consultation A tool incorporating the Spectrum of consultation could be developed in order to pre-assess the could be developed in order to pre-assess the strength of the claim. strength of the claim.

4.4. Claims that are even doubtful and marginal should Claims that are even doubtful and marginal should be brought forth to the government of Canada be brought forth to the government of Canada (Haida Nation).(Haida Nation).

Suggestions from researchers to CAP for Suggestions from researchers to CAP for consideration in a future national policy consideration in a future national policy

positionposition

5.5. Capacity must be enhanced – to eventually Capacity must be enhanced – to eventually have trained staff at the national and affiliate have trained staff at the national and affiliate level to deal with questions and level to deal with questions and documentation relating to consultation and documentation relating to consultation and other issues of concern.other issues of concern.

6.6. Documentation should be drafted in plain Documentation should be drafted in plain language for both parties.language for both parties.

7.7. The policy should explicitly detail the process The policy should explicitly detail the process for consultation and off-reserve (both urban for consultation and off-reserve (both urban and rural areas), non-status, Métis.and rural areas), non-status, Métis.

Suggestions…Suggestions…

8.8. Consultation should always be meaningful Consultation should always be meaningful and in good faith.and in good faith.

9.9. Consultation should be done on all issues Consultation should be done on all issues of concern to CAP: some of those issues of concern to CAP: some of those issues are:are:

Human rights, Education, Criminal justice Human rights, Education, Criminal justice issues, Governance issues, health, economic issues, Governance issues, health, economic development, etc.development, etc.


10.10. CAP & affiliates and government of CAP & affiliates and government of Canada and provinces should put Canada and provinces should put forward for negotiation a reasonable forward for negotiation a reasonable interpretation of the applicability of interpretation of the applicability of the duty to consult (MOU).the duty to consult (MOU).

11.11. Harmonize and consolidate policies.Harmonize and consolidate policies.


12.12. CAP should develop internal duty to CAP should develop internal duty to consult policies in order to deal with consult policies in order to deal with the questions put forward in a the questions put forward in a practical and effective manner.practical and effective manner.

Researchers’ suggestions for Researchers’ suggestions for GovernmentGovernment

1.1. The right to participation should encompass setting The right to participation should encompass setting up of a framework for participation that is sensitive up of a framework for participation that is sensitive to the differing orientations and aspirations of CAP & to the differing orientations and aspirations of CAP & affiliates.affiliates.

2.2. Of particular importance is a procedure for resolving Of particular importance is a procedure for resolving objections to changes in affiliation put forward on objections to changes in affiliation put forward on behalf of Aboriginal peoples that could not be behalf of Aboriginal peoples that could not be resolved by negotiations, presumably submitting resolved by negotiations, presumably submitting such objections to a mutually agreed upon arbitral such objections to a mutually agreed upon arbitral mechanism that operates within a framework that mechanism that operates within a framework that includes respect for the minimum relevant standards includes respect for the minimum relevant standards already accepted (Consultation Appeal Board). already accepted (Consultation Appeal Board).


3.3. Given the set of evolving circumstances, the Given the set of evolving circumstances, the government of Canada would need to accept government of Canada would need to accept responsibility for providing guidelines and responsibility for providing guidelines and specific policies for ensuring full participation specific policies for ensuring full participation on issues of concern and interest. on issues of concern and interest.

4.4. Important areas include: language, culture, Important areas include: language, culture, education, health, social services, economic education, health, social services, economic initiatives, legislation, environment and initiatives, legislation, environment and conservation, land claims and self-conservation, land claims and self-government.government.


5.5. The creation of the “Aboriginal Affairs coordinator” The creation of the “Aboriginal Affairs coordinator” and the “Interministerial support group”. and the “Interministerial support group”.

6.6. Consultation should be done with band councils Consultation should be done with band councils and not with individuals, which would take up too and not with individuals, which would take up too much time and third parties might be asked to be much time and third parties might be asked to be included if they want to. included if they want to.

7.7. The creation of a financial support group to assist The creation of a financial support group to assist aboriginal people in participating in consultation aboriginal people in participating in consultation process.process.


8.8. All documents addressed to aboriginal All documents addressed to aboriginal people should have an approach that people should have an approach that is easy to understand.is easy to understand.

9.9. If a request is made for the translation If a request is made for the translation of a document, then the government of a document, then the government should have that text translated in a should have that text translated in a clear, understandable and plain clear, understandable and plain language.language.

Duty to consultDuty to consult

►This study will serve as a foundation This study will serve as a foundation for CAP to develop a national policy for CAP to develop a national policy position after meaningful consultation position after meaningful consultation within its affiliates communities. within its affiliates communities.

THE ENDTHE END

Questions?Questions?

Engagement with First Nations, Métis, and Inuit Groups with regards to Consultation and Accommodation Prepared for the Congress of Aboriginal Peoples By.

Documents

cap national policy

background cap

national policy position

draft policy position

specific policy questions

different policy positions

analysis best practices

overwhelming position