In November 2004, the Supreme Court of Canada (SCC) released two important decisions, Taku River Tlingit First Nation v. British Columbia and Haida Nation v. British Columbia. Together these cases have changed Aboriginal Rights Law by declaring both the Federal and Provincial Crowns have a duty to consult and accommodate in cases where Aboriginal Title and Rights have not been proved in court. The decisions establish a strong legal foundation for First Nations to continue their work to sustain the lands and resources on which their future depends and ensure steps are taken to effectively resolve their concerns.

Case law and experience has shown several advantages to proper consultation and accommodation. Proper consultation will include among other things;

• Consultation in a timely manner and in good faith;

• A decrease in the likelihood of regulatory and land use approvals being challenged by communities who haven’t been adequately informed or accommodated with respect to their concerns;

• Sufficient information provided to the community in a timely manner so that they may have an opportunity to consider the information and develop a position; and

• The community having the opportunity to express its interests and concerns with serious consideration being given to these concerns.

As a result of the SCC decisions regarding the Haida Nation and Taku River Tlingit, and the potential outcome of the Mikisew Cree case that was heard by the SCC in March 2005, the Provincial Government invited the FSIN to meet with senior representatives. This meeting took place on February 3, 2005 and included the FSIN, Prince Albert Grand Council (PAGC), and the Deputy Ministers from First Nations and Metis Relations, Saskatchewan Environment and Northern Affairs.

At this meeting it was discussed that the SCC decisions have established a general framework for the duty to consult and accommodate on the part of the Federal and Provincial Governments. As a result, it is the duty of the Provincial Government to work with First Nations in Saskatchewan to ensure that a formal process is created to achieve these ends. Both the FSIN and PAGC stated that the creation of this process cannot be conducted in isolation of First Nations, but that the Province must involve them directly.

The issues of consultation and accommodation is a major concern among the First Nations, particularly in northern Saskatchewan due to the increasing levels of exploration/licensing and natural resource development and extraction activity being undertaken within their territories. It is imperative on the Provincial Government to ensure that First Nations are fully apprised of and involved in any current and proposed developments.

In February 2005, the Lands and Resources Commission directed the Lands and Resources Secretariat to:

• begin discussions with the Provincial Government on the Duty to Consult and Accommodate the First Nations of Saskatchewan in regard to lands and resource issues;

• ensure these discussions lead to the establishment of a process which assures that when consultation is to be undertaken by the Provincial Government, adequate resources be provided to the First Nations involved to undertake research processes, including Elders testimony and educational sessions with their membership, and;

• that the Lands and Resources Commission recommends the FSIN develop an overall First Nation Consultation and Accommodation policy that will address all sector areas.

Also in February, 2005 the Lands and Resources Commission requested support from the FSIN Chiefs-in-Assembly for the work being undertaken by the Lands and Resources Secretariat on the Duty to Consult. This work would ensure that there is appropriate consultation and accommodation of First Nations with respect to lands and resources. The motion also included the FSIN take a lead role on creating a province-wide accommodation and consultation policy that would incorporate all sector areas.

The Chiefs-in-Assembly adopted Resolution #1375 on February 23, 2005 entitled, “First Nation Consultation and Accommodation Policy” supporting the Lands and Resources Commission direction.

On March 14 and 15, 2005 the Supreme Court of Canada heard Mikesew v. Canada regarding the obligations of the Government of Canada to consult and accommodate First Nations on the “taking up” of lands pursuant to Treaty 8. This highly anticipated case will further define the duties of the federal and provincial government in a Treaty context. Decision has been reserved and is expected to be released in the Fall 2005.

A draft form of the Consultation guidelines have been developed and are intended to accompany the FSIN Consultation policy that is currently under development. In addition to this work the Lands and Resources Commission directed the Secretariat to begin the process of sharing the guidelines with other FSIN Commissions, as well as First Nations communities and Tribal Councils in Saskatchewan for their feedback and review.

It will be incumbent upon the FSIN to ensure that all First Nations across Saskatchewan are made aware of their rights with respect to the duty of the Provincial Government to consult on and accommodate their interests when dealing with resources, including water, animal, plant, renewable and non-renewable, land use and other similar developments.

The Duty to Consult and Accommodation is not limited to the lands and resources sector, but must also be incorporated across all sector areas.