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Tuesday, November 04, 2008

Resource rights and a duty to consult

Joanne Paulson, Saskatchewan News Network; Canwest News Service

Published: Tuesday, November 04, 2008

SASKATOON -- Who is mainly responsible for consulting on resource development with aboriginal peoples -- governments or industry?

That was the overriding question Monday morning during a polite but divergent debate on the duty to consult and accommodate aboriginal people, as prescribed by the Supreme Court in recent rulings.

The issue of how to implement the duty to consult was front and centre at the Canadian Aboriginal Minerals Association (CAMA) conference at the Delta Bessborough Hotel Monday, where the Adam Ballroom was packed with attendees.

There are presently no standards paving the way toward signing resource development agreements between aboriginal peoples, industry and governments, said an Ontario First Nations chief and mining organization official in an interview.

Chief Glenn Nolan, who is also second vice-president of the Prospectors and Developers Association of Canada (PDAC), says the Supreme Court of Canada's decisions leading to the duty to consult have not yet led to any written or standardized processes.

The federal government has downloaded the responsibility to provincial governments, which are "not even following the what's being dictated by the decisions of the Supreme Court, because they download the responsibilities to the companies that are working the land," he said.

The Supreme Court of Canada has said in several cases that if resource development infringes on treaty rights, governments are obliged to consult and accommodate First Nations. The decisions have arisen from Section 35 of The Constitution Act of 1982, which recognizes the rights of Canada's aboriginal peoples.

In Saskatchewan's case, meetings are taking place with the provincial government, in an effort to formulate a duty to consult policy.

Lawrence Joseph, Chief of the Federation of Saskatchewan Indian Nations (FSIN), said that Premier Brad Wall has shown "great signs of political will" in addressing the issue.

In a speech, Joseph asserted the treaty rights of Indian nations, and said it's not too late to partner with First Nations in economic development.

"We need economic development to be our new buffalo," said Joseph.

Indeed, First Nations need the mining companies to help relieve poverty. But First Nations don't need sympathy; they need support, he said.

"We just want a piece of the action."

Gary Merasty, vice-president of corporate and social responsibility for Cameco Corp., said his company views the duty to consult as the responsibility of the Crown, whether federal or provincial.

There are widely divergent views on duty to consult, and companies are quickly realizing the responsibility is being devolved to industry, he said.

"I do encourage governments across the clarify the guidelines as best as (they) can."

But Joseph said industry also has the duty to consult.

Nolan said that legislating duty to consult policies will not solve all the issues regarding development. Every aboriginal community is unique and has its own issues; there are also overlapping jurisdictions, such as between First Nations and Metis, that must be resolved.

There is presently a wide range of understanding of obligations by industry, and also a wide range of agreements with aboriginal peoples across Canada, he said.

Agreements with industry have been signed for some time -- even before the duty to consult was established through court rulings.

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And views ... The federal government has downloaded the responsibility to provincial governments, which are "not even following the what's being dictated by the decisions of the Supreme Court, because they download the responsibilities to the companies that are working the land," he said. So true! Ignoring their duty to consult, the Ontario government has approved development on disputed Six Nations territory. The municipality also gave the go ahead and the developers went ahead. Six Nations stopped the illegal developments and demanded that Ontario and the municipalities and the developers consult with them first, as is the law in Canada. Ontario is not only refusing to abide by the Supreme Court rulings (ie, the rule of law), but Premier Dalton McGuinty has announced that municipalities and developers should not consult either. Brantford went to Brantford low court and got a flimsy temporary injunction that police have used repeatedly to confront and arrest Six Nations people peacefully protecting the disputed land. Despite this, private construction has stopped as developers respect Six Nations right to a proper decision on land claims and land rights. However, the City of Brantford keeps trying to put in infrastructure for one development, continuing to flaunt the law and fan the flames. The real injunction hearing is yet to be held. After at first saying in June that it would be 'soon', the Brantford low court judge has stalled the hearing. This avoids implementing the rule of law in Ontario, according to the Ontario Court of Appeal ruling this summer: July, 2008, decision of the Ontario Court of Appeal re KI and AAFN, and the Duty of the Crown to consult before development: [48] Where a requested injunction is intended to create “a protest-free zone” for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532. In other words, there can be no injunction granted to Brantford against Six Nations because Ontario has not "fully and faithfully discharged its duty to consult". There can be no further legal action against any Indigenous group simply for stopping development on disputed land.

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My Canada includes rights of Indigenous Peoples.

Two Row Wampum Treaty

Two Row Wampum Treaty
"It is said that, each nation shall stay in their own vessels, and travel the river side by side. Further, it is said, that neither nation will try to steer the vessel of the other." This is a treaty among Indigenous Nations, and with Canada. This is the true nature of our relationships with Indigenous Nations of 'Kanata'.