Duty to Consult: Union of B.C. Indian Chiefs, Brantford, Ardoch Algonquins, New Brunswick

We/Canada brags about its bargain basement selloff of resources - Best in return on investment to the shareholder - but all Canadian land 'assets' are overvalued, because they are not acknowledged to be encumbered by Indigenous Peoples' rights and titles. We haven't paid our debts and obligations to Indigenous Peoples for the right to share the land we call Canada, our right to be here. That's why our governments are selling off resources so cheap and so fast these days: Trying to outrun justice. Because soon they will be stopped enough times by direct or court action that they will be forced to implement Constitutional law through legislation:

Recent case law from the Supreme Court of Canada (Haida and Taku) has confirmed that the Crown has a duty to consult, and if necessary, accommodate Aboriginal interests when it has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it.

A say in development and a share in revenues on traditional Indigenous land. And then the price of doing business in Canada goes up.

EXAMPLE: Union of BC Chiefs

Union of B.C. Indian Chiefs say Province wilfully mislead or withheld information about BCRail

Re: Proposed merger of BC Rail with CN Rail

http://bctrialofbasi-virk.blogspot.com/2008/07/blog-post.html

“Within the rail industry, CN has moved from worst to first. We're now the best railroad in North America. Best in service. Best in operating efficiency. Best in safety. Best in return on investment to the shareholder.” (E. Hunter Harrison, President and CEO) There has been no consultation with Indigenous Peoples. Instead, the province has acted in bad faith by keeping the details of this Agreement secret from Indigenous Peoples. ... The constitutional rights of Indigenous Peoples must be addressed. In the absence of evidence of consultation this transaction cannot be approved. There has been no consultation; Instead, the province of B.C. willfully mislead and lied to Indigenous Peoples about this transaction. The Competition Bureau must be mindful of existing constitutional rights and consider the privatization deal from the perspective of the impact that it will have on Aboriginal Title and Rights. Absent proof of government’s fulfillment of its legal obligations to Indigenous Peoples, this merger (transfer) cannot be approved. ... Failure to act in a timely and fair manner to resolve matters satisfactory to Indigenous Nations may attract less patient responses than protracted litigation, including direct action. ... Yours truly, Union of B.C. Indian Chiefs Chief Stewart Phillip President

EXAMPLE: Brantford

Brant Liberal MP Lloyd St. Amand should be taking his anger over development protests in Brantford to his provincial Liberal cousins at Queen's Park. While our federal government takes responsibility for helping settle land claims, the province is clearly responsible for both policing and development issues, which includes the issue of licensing permits. That is why Ontario is at the negotiation table, because the province knows they have an integral responsibility in helping settle these long-standing development issues between Six Nations and neighbouring municipalities. In just 2 1 /2 years, our Conservative government has tabled two significant offers to Six Nations leadership, who are currently reviewing our $26 million offer to settle the Welland Canal portion of their claim. Our federal negotiators have been working extremely hard to settle this claim and have attended more than 100 meetings. We remain committed to resolving these issues in a manner that is not only fair for Six Nations members but is also fair for the non- Aboriginal community as well. Chuck Strahl Minister of Indian Affairs Ottawa Show respect to Six Nations I agree with Tuesday's editorial, "Not a step forward," that "respect is a two-way street. But you proceed to say that it's only Six Nations who are being disrespectful. You suggest that we should sit back and allow development to proceed while things progress in the courts and at the interminable negotiating table. The assumption underlying your editorial is, of course, that any native claims to the properties in question were rightfully extinguished years ago and that the properties in question are rightfully deeded to you and yours. If you assumed that the natives might be right, that they have a legitimate claim to the lands, that the Haldimand Deed is the last clear title to the lands in question, then natives have every right to stop all development within their territory to allow you an opportunity to demonstrate your claims to the land -- claims which cannot be substantiated, as there has not been a legitimate surrender by the Six Nations. Your deeds and titles were issued under false pretenses. And therefore you should be required to demonstrate a legitimate claim. All development should stop immediately until your claims have been settled and Six Nations approves of the individual development projects. If you were as respectful as you suggest, perhaps you might consult with us and negotiate in good faith. Or insist that your representatives do so. Marilyn Maracle Ohsweken

EXAMPLE: Ardoch Algonquins

Reid has argued that the Government of Ontario had a duty to consult the Ardoch Algonquins before accepting the Frontenac Ventures mining claims under the Ontario Mining Act because the land in question is part of a land claim.

Later Justice MacPherson asked the question, “What then are the unique systemic or background factors that played a part in bringing the AAFN and two of its leaders before the courts to be sentenced for contempt? The first background factor is that there is an existing land claim negotiation between the Algonquin Nation and Ontario.”

“ What Frontenac Ventures wants to do on Crown land - staking and exploration - is legal under the Mining Act. However, the appellants' response, although in contempt of two court orders, is grounded, at a minimum, in a respectable interpretation of s. 35 of the Constitution Act, 1982 and several recent decisions of the Supreme Court of Canada.”

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Thus, the sentences of the lower court were overturned. The implication of this for Indigenous rights throughout Ontario, like Six Nations, is that 'contempt' of injunctions imposed by the low courts will not stand up through the scrutiny of the high courts, because the actions of Indigenous Peoples in reclaiming their land or in claiming Aboriginal rights on the land, are grounded in the Constitution and those rights must be respected. In the case of the developments in Brantford, Minister Chuck Strahl has finally stepped up and pointed the finger in the correct direction: the province is clearly responsible for ... development issues, which includes the issue of licensing permits. Ontario is responsible for consulting with Six Nations

Recent case law from the Supreme Court of Canada (Haida and Taku) has confirmed that the Crown has a duty to consult, and if necessary, accommodate Aboriginal interests when it has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it.

"Conduct" like ... issuing development permits for land in Brantford where Six Nations clearly hold Aboriginal rights. The Haldimand Proclamation is deemed valid, and thus any land in the Haldimand Tract is subject to the Crown's "Duty to Consult".

Ontario is responsible. And British Columbia is responsible. And New Brunswick is responsible. http://grannyrantson.blogspot.com/2008/07/rights-of-indigenous-peoples-crowns.html All of the provinces are responsible for their "conduct that might adversely affect" Aboriginal rights and titles.