The Duty to Consult First NationsThe Secretariat has developed a comprehensive First Nations consultation strategy mandated by the Chiefs-in-Assembly. The Secretariat continues to move forward on the Duty to Consult and Accommodate processes. The Duty to Consult is framed on the Elders' testimony and oral history, based on our treaties, and the recent Supreme Court decisions can be used to support the processes.
In May 2008 the Government of Saskatchewan hosted a conference on consultation and accommodation and the conference report was released on October 8, 2008. Subsequently, the Government of Saskatchewan unilaterally drafted and released the Draft First Nation and Métis Consultation Policy Framework on December 22, 2008. They released their final draft of the document entitled the First Nation and Métis Consultation Policy Framework (CPF) on June 15, 2010. First Nations were not appropriately consulted on the CPF. The government was informed that the first draft of the CPF failed to address process related and substantive concerns regarding taking into account the long-term sustainability of Inherent and Treaty rights. As a result, First Nations of Saskatchewan rejected the CPF by Resolution #1627 entitled First Nations Strategy on Consultation, Accommodation and Resource Revenue Sharing, at a special Legislative Assembly convened on February 18, 2009. The Consultation Policy was rejected for seriously and negatively affecting the Inherent and Treaty rights of First Nations of Saskatchewan and failing to meet the legal requirements set out by the Canadian courts for meaningful consultation and accommodation with First Nations. On October 27, 2010, the Chiefs-in-Assembly passed Resolution #1729; Rejection of the Government of Saskatchewan's Final Consultation Policy Document entitled First Nations and Métis Consultation Policy Framework, formally rejecting the final document.
Resolution #1627 identified the need to unify and work collectively to implement the duty to consult and accommodate and resource revenue sharing because these issues affect the collective Inherent and Treaty rights of First Nations. In order to ensure that consultation procedures respect established legal rights, the Chiefs-in-Assembly directed the Federation of Saskatchewan Indian Nations (FSIN) to support and/or work with the Tribal, Agency, Grand Councils, Independent First Nations and Treaty organizations to develop a unified declaration and agenda on consultation and accommodation, and resource revenue sharing by March 31, 2010.
A Tribal Chiefs Steering Committee and a Technical Working Group were established to guide this work. The Steering Committee and Working Group developed a comprehensive strategy which included:
-a political strategy to reconcile ongoing issues related to consultation, accommodation, and revenue sharing
-a Unified Declaration on the rights of First Nations and the obligations of the Crown to consult with First Nations and accommodate Inherent and Treaty Rights
-a technical strategy consisting of a Model Law and Consultation Procedure that First Nations can adopt or modify for their own use at the community level. A cost of consultation analysis has also been developed
-a revenue sharing strategy which is supported by the communications strategy
-a communications strategy to support the consultation and accommodation strategy and the revenue sharing strategy
The Secretariat and the Chiefs have put forward the First Nations procedures, law and supporting documents. On March 8, 2010, the FSIN Chiefs-in-Assembly passed resolution #1684 entitled "Declaration and First Nations Model Procedure on Consultation and Accommodation" and resolution #1685 entitled "Support for the Communication, Legal, and Political Strategies on Consultation and Accommodation". These resolutions approve and support the work of the Lands and Resources Secretariat as well as adopt the documents as described below:
Communications Strategy - The firm of McLoughlin Media was retained to develop a communications strategy and media plan. A comprehensive communications strategy is vital in linking all the strategies together. The LRS has further developed McLoughlin's draft strategy and have finalized the plan for implementation.
Legal Strategy – Upon the request from the Chiefs-in-Assembly, Legal Counsel was retained to render an opinion on legal options to tackle the repeated issuance of licenses and permits a moratorium in the issuance of licenses and permits. A critical step is to create 'leverages' to change the way in which the Crown consults and/or makes decisions through the identification of a First Nation(s) who has developments proceeding in their area. Once the First Nation(s) has been identified and support obtained for FSIN to work with this First Nation, the next stage is to develop evidence and arguments to show that the direct (site specific), indirect and cumulative impacts of those developments have the potential to adversely affect or infringe on First Nations Inherent and Treaty rights.
First Nation Law on Consultation and Accommodation and Consultation Procedures - a model law on consultation has been drafted to establish how First Nations would be consulted. The law is complete and has been adopted through resolution #1684. In addition to the law, model consultation procedures have been drafted to put the law into practical effect along with other supporting documents.
First Nation Declaration on Consultation and Accommodation – the Declaration is complete and unites all 74 First Nations around the duty to consult and accommodate.
Political Strategy - The political strategy recognizes that there is a need for a high level table or "Chiefs' Political Forum", in order to advocate for the reconciliation of First Nations collective interests regarding consultation, accommodation, and revenue sharing. The table consists of 13 Chiefs, who will determine the level of participation of the Premier and key provincial Cabinet Ministers, and the Minister of INAC and key federal Ministers. The Chiefs' Political Forum could be a table for negotiations, on a Nation-to-Nation basis, reconciliation regarding the principles and ongoing practical issues surrounding consultation, accommodation, and revenue sharing. However, the issues which could arise at this table would not be limited, but may include pipeline developments, mining, and oil & gas, to name a few. This would be a permanent table which would be regular/ongoing, funded, and recognized as having decision-making capacity.
The FSIN officially launched the technical strategy at the All Chiefs Legislative Assembly on June 10, 2010. The FSIN established a Permanent Forum on Reconciliation of Lands and Resources through Chiefs-in-Assembly Resolution #1724, Implementation of the Duty to Consult Political Strategy, adopted on June 10, 2010, to deal with consultation, accommodation and revenue benefit sharing issues. This is one component of the First Nations Law and Procedure on Consultation and Accommodation. The resolution approved the establishment of the Permanent Forum on Reconciliation of Lands and Resources. A draft terms of reference was developed and the first internal meeting of Chiefs has been held, the draft terms of reference will be presented to the Permanent Forum at their next meeting. Funding has to be identified to carry out this work.