Duty to Consult
Duty to Consult
First Nations in Saskatchewan have Inherent and Treaty rights to lands and resources within the province of Saskatchewan. Section 35 of the Constitution Act, 1982, recognizes and affirms existing Aboriginal and Treaty rights of the Aboriginal Peoples of Canada, which includes First Nations people. Recent decisions of the Supreme Court of Canada (SCC) have established that the Crown is always under a common law and constitutional duty to consult with First Nations and may have to accommodate the rights and concerns of First Nations, prior to making any decisions when contemplated conduct may adversely impact the section 35 rights of First Nations.
The Government of Saskatchewan unilaterally drafted and released the “Draft Government of Saskatchewan First Nation and Metis Consultation Policy Framework” on December 22, 2008. However, First Nations were not appropriately consulted on the Consultation Policy, which failed to address process-related and substantive concerns regarding taking into account the long-term sustainability of section 35 rights. As a result, First Nations of Saskatchewan rejected the Consultation Policy by Resolution #1627, “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 in Saskatchewan, and failed to meet the legal requirements set out by the Canadian courts for meaningful consultation and accommodation with First Nations.
By Resolution #1627, First Nations in Saskatchewan 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 First Nations Chiefs-in-Assembly directed the then Federation of Saskatchewan Indian Nations (FSIN – now referred to as the Federation of Sovereign Indigenous Nations) 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.
The consultation process being developed by and for First Nations in Saskatchewan, pursuant to this direction, will create a unified procedure which will further the complementary goals of developing long-term sustainability, achieving peace and reconciliation, and creating certainty and predictability over lands and resources in Saskatchewan. First Nations have directed that the First Nations Strategy on Consultation, Accommodation, and Resource Revenue Sharing be based on the First Nations Inherent and Treaty rights, direction by First Nation communities, and the following Treaty Implementation Principles:
- We, the First Nations, come from Mother Earth, and this determines our relationship with nature, our role as stewards of this land, and all forms of life and our sovereignty;
- We, the First Nations, occupied North America as sovereign Nations long before other people came to our shores;
- We, the First Nations, have always made our own laws, institutions and jurisdiction, which reflects our cultures, values and languages;
- Our sovereignty enables us to enter into Treaty and other political accords with other Nations;
- The Royal Proclamation of 1763 recognized our sovereignty, institutionalized the Treaty-making process, and made our consent a condition before our lands and resources could be alienated;
- First Nations and the Crown affirmed each other’s sovereignty in the Treaty process;
- Our sovereignty will continue forever and will continue to define our nationhood forever;
- Our Treaty has international stature;
- The spirit and intent of the Treaty relationship is more valid than the written text and will last “as long as the sun shines, the rivers flow and grass grows;
- Canada has an on-going obligation to fulfill the Treaty according to the Spirit and Intent.
In addition, it will also ensure that the following legal principles which have been established by the courts are respected and upheld:
- Consultation is an ongoing process and is always required; (Haida)
- Consultation is a “two-way” street with obligations on each side (Ryan, Halfway River);
- Consultation and accommodation are constitutional obligations; (Kapp)
- First Nations’ input must be seriously considered, substantially addressed and, as the context requires, may require accommodation (Mikisew, Halfway River);
- Stakeholder processes will not be sufficient to discharge the Crown’s duty to consult (Mikisew) nor will public processes open to First Nations, such as participation in Public Hearings, be sufficient to discharge the Crown’s duty to consult (Dene Tha’);
- The Crown has a positive obligation to provide full information on an ongoing basis, so that First Nations can understand potential impacts of decisions on their rights (Jack, Sampson, Halfway) and such information must be responsive to what the Crown understands to be the concerns of the First Nations (Mikisew);
- The Crown must properly discharge both its procedural and substantive duties in any consultation process (Mikisew) and a failure to properly satisfy process-related concerns of First Nations, irrespective of the ultimate impact on substantive rights, may be a basis upon which a decision can be struck down (Mikisew);
- The Crown must have sufficient, credible information in decision making and must take into account the long-term sustainability of section 35 rights (Roger William);
- The purpose of consultation is reconciliation and not simply the minimization of adverse impacts (Dene Tha’);
- Consultation must take place early, before important decisions are made – at the “strategic planning” stage (Haida, Dene Tha’, Squamish Nation);
- Consultation cannot be postponed to the last and final point in a series of decisions (Squamish Nation);
- Consultation is required in respect of the design of the consultation process itself (Huu-ay-aht);
- First Nations must be consulted about the design of environmental and regulatory review processes (Dene Tha’);
- Consultation cannot just be in respect of “site specific impacts” of development – but must also focus on the cumulative impacts, derivative impacts, and possible injurious affection resulting from development (Dene Tha’, Taku River, Mikisew, Roger William);
- The Crown must approach consultation with an open mind and must be prepared to alter decisions depending on the input received (Haida); and
- Consultation cannot be determined simply by whether or not a particular process was followed, but on whether the results are “reasonable” in light of the information presented, degree of impacts, and related matters (Wil’itsxw).
Therefore, any and all consultation with First Nations in Saskatchewan must be coordinated with and adhere to the unified strategy being developed pursuant to Resolution#1627, “First Nations Strategy on Consultation, Accommodation and Resource Revenue Sharing”.
Model Law Template on Consultation
In March 2010, the FSIN Chiefs in Assembly adopted Resolution #1684, entitled “Declaration and First Nations Model Procedure on Consultation and Accommodation”. This Chiefs in Assembly Resolution adopted the Model Law Template on Consultation, with accompanying documents, and such documents were provided to the First Nations who wished to adopt the template for their First Nation – and to change the templates to suit their individual needs.
FSIN Consultation Policy
In May 2006, pursuant to recent decisions from the Supreme Court of Canada (SCC) on the duty to consult and accommodate, the Chiefs in Assembly adopted Resolution #1455, entitled First Nation Consultation Policy. The purpose of the FSIN Consultation Policy was to address the manner in which the FSIN will consult with First Nations; address the manner in which the FSIN will be consulted when working with First Nations, Crown agencies, private agencies, businesses and organizations, people and communities; produce better communication, and stronger relationships; ensure that the honour of the Crown is upheld by ensuring government discharges its obligation to consult and, if appropriate, accommodate First Nations’ interests; and, produce easier accommodation and resolution of issues between the FSIN, the First Nations, Crown agencies, private agencies, businesses and organizations, people and communities.