The Impact of Recent Decisions on the Duty to Consult & the Determination of Aboriginal Rights
This paper was prepared by Barbara Fisher, Blake, Cassels & Graydon LLP, for the Continuing Legal Education course materials Aboriginal Law Conference-2002, March, 2002 and is reproduced with permission.
The Crown's duty to consult with a First Nation about Crown regulation or activity that affects the First Nation arises from a variety of legal sources. The first source emerges from the Crown's historical fiduciary relationship with aboriginal people. The common law duty, given constitutional protection under the Constitution Act, 1982, has been expanded to include a duty to consult about possible infringements of s. 35(1) rights. In addition, a statutory regime may set out specific duties to consult within the context of an approval process, government policy may establish consultation guidelines and finally, the rules of natural justice and administrative fairness also dictate to some degree the extent of the duty to consult.
The historical fiduciary relationship has been primarily between the federal Crown and aboriginal people. However, more recently, courts have identified a similar relationship between the provincial Crown and the aboriginal peoples of the province. The scope of this fiduciary relationship and the duties arising from it are still being defined through litigation.
Provincial jurisdiction over lands and resources, and provincial regulation and activity on Crown land has resulted in more frequent conflicts between First Nations' aboriginal rights and interests, the provincial Crown and third parties. According to recent authority from the B.C. Court of Appeal, the province does not have the constitutional jurisdiction to authorize any official, decision-maker or tribunal to determine the aboriginal rights of any First Nation. However, the province may still infringe aboriginal rights through valid provincial laws and regulations provided such infringement is justified. Only a court may ultimately determine whether a First Nation has aboriginal rights, what the scope of such rights are, whether there has been an infringement in any particular case and if so, whether such infringement is justified.
While there are as yet no court decisions defining the nature and scope of any First Nation's aboriginal rights, the Crown has a considerable amount of information about British Columbia First Nations' interests, since over 2/3 of these First Nations have been in the treaty process since 1994. Therefore, the Crown should be in a position to reasonably assess assertions of aboriginal rights in any particular case.
In addition to being a key element in the infringement and justification analysis, consultation is a practical requirement. However, because of the limitations on the province's jurisdiction, it must consult only about possible infringements of aboriginal rights and about the First Nation's interests (outside the constitutional context) in the lands or resources at issue.
The content of the Crown's duty to consult has not changed substantially over the past number of years. Regardless of the legal source of the duty, the province has for a long time been required, from a practical and economic perspective, to consult with First Nations about the use of resources in their traditional territories.
The consultation exercise essentially requires the following elements:
- The Crown fully informing the First Nation about the proposed regulation, permit, approval or activity;
- The First Nation fully informing the Crown about its assertion of rights, traditional practices, interests and concerns;
- The Crown assessing the First Nation's assertion of aboriginal rights and the scope of those rights;
- The Crown considering its fiduciary obligations to the First Nation and the possibility that its proposed action might infringe aboriginal rights;
- The Crown considering the First Nation's interests in the affected area;
- The Crown seriously considering alternative courses of action to address the First Nation's interests and to avoid possibly infringing its aboriginal rights.
In the writer's view, the courts have not done an adequate job of providing clear direction about the duty to consult that is conducive to achieving certainty or negotiated settlements. The courts have not clearly delineated the content of the duty to consult stemming from fiduciary, constitutional, common law or statutory requirements. Many decisions focus on the constitutional justification analysis, which is one element (albeit an important one) of consultation, but an element that creates a more adversarial environment for negotiation. Other cases focus on administrative law issues of procedural fairness, with varying results depending on the scrutiny of analysis. It is not clear whether a comprehensive statutory consultation regime that considers the Crown's fiduciary, constitutional and common law duties is sufficient for all purposes. Finally, the courts appear to separate process from substance. This is problematic, because the substance of a right in issue is relevant in determining the appropriate process to consult about activities that may affect that right.
By David Carruthers and Bo Reid
The Heiltsuk Geographic Information Systems (GIS) Department was developed by the Heiltsuk Treaty Office in 1995. It is a great example of how First Nation Peoples can build capacity within their communities. By developing local skills and utilizing local resources, the Heiltsuk Nation is directly investing in the health of the community for today and the future.
Bo Reid is the manager of the Heiltsuk GIS Department. Through three years of training, he has had the opportunity to develop the necessary skills to manage various research projects that directly benefit the Heiltsuk in many areas such as:
- Linking information gaps between the different research departments, including fisheries, forestry and the cultural education centre;
- Producing maps that support the Heiltsuk Tribal Council, Heiltsuk Hemas (hereditary chiefs) and research directors in analyzing datasets for decision-making;
- Developing maps that are used as educational tools for community members and Heiltsuk youth;
- Storing information and networking with other First Nations to better utilize information & refine skills.
The Heiltsuk First Nation recognizes the importance to protect and preserve their resources on all levels. Through various research initiatives and economic opportunities, the Heiltsuk, strive to find independence and self-sufficiency.
|One project of particular interest has been the Heiltsuk Map Atlas, a series of 40 maps illustrating the physical, biological and cultural assets of the territory. It includes maps on tourism, wildlife values, culturally modified trees and legend sites. The atlas also brings together many government-prepared datasets, interpreting them from a Heiltsuk perspective and updating them where necessary with local knowledge.||
"We felt that it was important to become familiar with government data and to be able to interpret and amend it according to our OWN needs"
"We felt that it was important to become familiar with government data and to be able to interpret and amend it according to our OWN needs", says Bo Reid. "The atlas gives us an opportunity to assess the information we have to date, and gives us a better understanding of some of the gaps that exist in this body of knowledge. We can then go to the community and work on filling these gaps".
Reid recognizes the value in bringing a Heiltsuk voice to the atlas. He has been frustrated with many outside consultants and researchers trying to interpret Heiltsuk values. "Doing the work at home allows us to interpret the information from a Heiltsuk perspective, as oppose to having someone come into our community and try to think from a Heiltsuk perspective, which doesn't work".
"Doing the work at home allows us to interpret the information from a Heiltsuk perspective"
The atlas is atool that the Heiltsuk can use at all levels, whether it be foreducation, research initiatives or for simply cataloging information forfuture generations. Showcased here on the Aboriginal Mapping Network isone map from the forest series of the atlas.
Click on map to see larger version
In the four corners of the map, you will see the four crests of the Heiltsuk Nation: the Eagle, the Raven, the Killer Whale, and the Wolf. Designed by local artist Walden Marty Windsor, these crests represent the hereditary structure of the Nation. Presented on the maps, these crests help to ground the work in the community and to show respect to the Chiefs.
From an information management perspective, this project has helped to organize, store and archive information in an efficient way. And it has also been a learning process.
"One of the most important things we've learned is the power of networking with other First Nations and organizations who have already worked on similar projects. This helps to avoid duplication and build important relationships in this field", says Reid. "You also have to have a vision of how the final product will be used. This helps you prepare the data according to the end needs. For example, if it's to be used an as educational tool, it has to incorporate data that is accessible to youth."
|Click on maps to see larger version|
The atlas project is a success, and its success is in no small way attributed to the dedication to the project by Bo Reid and the Heiltsuk leadership.
"I think commitment is a big factor in the success of projects. Despite the closure of our treaty office, our community has recognized the value of our mapping office and has kept the mapping office alive. This is one small step in how we are rebuilding our Nation" says Bo Reid.
A conference review by Kira Gerwing
PRINCIPLE 1: COMPLIANCE WITH LAWS AND FSC PRINCIPLES
Forest management shall respect all applicable laws of the country in which they occur, and international treaties and agreements to which the country is a signatory, and comply with all FSC Principles and Criteria.
1.1 Forest management shall respect all national and local laws and administrative requirements.
1.2 All applicable and legally prescribed fees, royalties, taxes and other charges shall be paid.
1.3 In signatory countries, the provisions of all binding international agreements such as CITES, ILO Conventions, ITTA, and Convention on Biological Diversity, shall be respected.
1.4 Conflicts between laws, regulations and the FSC Principles and Criteria shall be evaluated for the purposes of certification, on a case by case basis, by the certifiers and the involved or affected parties
1.5 Forest management areas should be protected from illegal harvesting, settlement and other unauthorized activities.
1.6 Forest managers shall demonstrate a long-term commitment to adhere to the FSC Principles and Criteria.
PRINCIPLE 2: TENURE AND USE RIGHTS AND RESPONSIBILITIES
Long-term tenure and use rights to the land and forest resources shall be clearly defined, documented and legally established.
2.1 Clear long-term tenure and forest use rights to the land (e.g. land title, customary rights, or lease agreements) shall be demonstrated.
2.2 Local communities with legal or customary tenure or use rights shall maintain control, to the extent necessary to protect their rights or resources, over forest operations unless they delegate control with free and informed consent to other agencies.
2.3 Appropriate mechanisms shall be employed to resolve disputes over tenure claims and use rights. The circumstances and status of any outstanding disputes will be explicitly considered in the certification evaluation. Disputes of substantial magnitude involving a significant number of interests will normally disqualify an operation from being certified.
PRINCIPLE 3: INDIGENOUS PEOPLES' RIGHTS
The legal and customary rights of indigenous peoples to own, use and manage their lands, territories and resources shall be recognized and respected.
3.1 Indigenous peoples shall control forest management on their lands and territories unless they delegate control with free and informed consent to other agencies.
3.2 Forest management shall not threaten or diminish, either directly or indirectly, the resources or tenure rights of indigenous peoples.
3.3 Sites of special cultural, ecological, economic or religious significance to indigenous peoples shall be clearly identified in cooperation with such peoples, and protected by forest managers.
3.4 Indigenous peoples shall be compensated for the application of their traditional knowledge regarding the use of forest species or management systems in forest operations. This compensation shall be formally agreed upon with their free and informed consent before forest operations commence.
PRINCIPLE 4: COMMUNITY RELATIONS AND WORKER'S RIGHTS
Forest management operations shall maintain or enhance the long-term social and economic well-being of forest workers and local communities.
4.1 The communities within, or adjacent to, the forest management area should be given opportunities for employment, training, and other services.
4.2 Forest management should meet or exceed all applicable laws and/or regulations covering health and safety of employees and their families.
4.3 The rights of workers to organize and voluntarily negotiate with their employers shall be guaranteed as outlined in Conventions 87 and 98 of the International Labour Organization (ILO).
4.4 Management planning and operations shall incorporate the results of evaluations of social impact. Consultations shall be maintained with people and groups directly affected by management operations.
4.5 Appropriate mechanisms shall be employed for resolving grievances and for providing fair compensation in the case of loss or damage affecting the legal or customary rights, property, resources, or livelihoods of local peoples. Measures shall be taken to avoid such loss or damage.
PRINCIPLE 5: BENEFITS FROM THE FOREST
Forest management operations shall encourage the efficient use of the forest's multiple products and services to ensure economic viability and a wide range of environmental and social benefits.
5.1 Forest management should strive toward economic viability, while taking into account the full environmental, social, and operational costs of production, and ensuring the investments necessary to maintain the ecological productivity of the forest.
5.2 Forest management and marketing operations should encourage the optimal use and local processing of the forest's diversity of products.
5.3 Forest management should minimize waste associated with harvesting and on-site processing operations and avoid damage to other forest resources.
5.4 Forest management should strive to strengthen and diversify the local economy, avoiding dependence on a single forest product.
5.5 Forest management operations shall recognize, maintain, and, where appropriate, enhance the value of forest services and resources such as watersheds and fisheries.
5.6 The rate of harvest of forest products shall not exceed levels which can be permanently sustained.
PRINCIPLE 6: ENVIRONMENTAL IMPACT
Forest management shall conserve biological diversity and its associated values, water resources, soils, and unique and fragile ecosystems and landscapes, and, by so doing, maintain the ecological functions and the integrity of the forest
6.1 Assessment of environmental impacts shall be completed - appropriate to the scale, intensity of forest management and the uniqueness of the affected resources - and adequately integrated into management systems. Assessments shall include landscape level considerations as well as the impacts of on-site processing facilities. Environmental impacts shall be assessed prior to commencement of site-disturbing operations.
6.2 Safeguards shall exist which protect rare, threatened and endangered species and their habitats (e.g. nesting and feeding areas). Conservation zones and protection areas shall be established, appropriate to the scale and intensity of forest management and the uniqueness of the affected resources. Inappropriate hunting, fishing, trapping and collecting shall be controlled.
6.3 Ecological functions and values shall be maintained intact, enhanced, or restored, including:
a) Forest regeneration and succession.
b) Genetic, species, and ecosystem diversity.
c) Natural cycles that affect the productivity of the forest ecosystem.
6.4 Representative samples of existing ecosystems within the landscape shall be protected in their natural state and recorded on maps, appropriate to the scale and intensity of operations and the uniqueness of the affected resources.
6.5 Written guidelines shall be prepared and implemented to: control erosion; minimize forest damage during harvesting, road construction, and all other mechanical disturbances; and protect water resources.
6.6 Management systems shall promote the development and adoption of environmentally friendly non-chemical methods of pest management and strive to avoid the use of chemical pesticides. World Health Organization Type 1A and 1B and chlorinated hydrocarbon pesticides; pesticides that are persistent, toxic or whose derivatives remain biologically active and accumulate in the food chain beyond their intended use; as well as any pesticides banned by international agreement, shall be prohibited. If chemicals are used, proper equipment and training shall be provided to minimize health and environmental risks.
6.7 Chemicals, containers, liquid and solid non-organic wastes including fuel and oil shall be disposed of in an environmentally appropriate manner at off-site locations.
6.8 Use of biological control agents shall be documented, minimized, monitored and strictly controlled in accordance with national laws and internationally accepted scientific protocols. Use of genetically modified organisms shall be prohibited.
6.9 The use of exotic species shall be carefully controlled and actively monitored to avoid adverse ecological impacts.
6.10 Forest conversion to plantations or non-forest land shall not occur, except in circumstances where conversion:
a) entails a very limited portion of the Forest Management Unit; and
b) does not occur on High Conservation Value forest areas; and
c) will enable clear, substantial, additional, secure, long term conservation benefits across the Forest Management Unit
PRINCIPLE 7: MANAGEMENT PLAN
A management plan - appropriate to the scale and intensity of the operations - shall be written, implemented, and kept up to date. The long term objectives of management, and the means of achieving them, shall be clearly stated.
7.1 The management plan and supporting documents shall provide:
a) Management objectives.
b) Description of the forest resources to be managed, environmental limitations, land use and ownership status, socio-economic conditions, and a profile of adjacent lands.
c) Description of silvicultural and/or other management system, based on the ecology of the forest in question and information gathered through resource inventories.
d) Rationale for rate of annual harvest and species selection.
e) Provisions for monitoring of forest growth and dynamics.
f) Environmental safeguards based on environmental assessments.
g) Plans for the identification and protection of rare, threatened and endangered species.
h) Maps describing the forest resource base including protected areas, planned management activities and land ownership.
i) Description and justification of harvesting techniques and equipment to be used.
7.2. The management plan shall be periodically revised to incorporate the results of monitoring or new scientific and technical information, as well as to respond to changing environmental, social and economic circumstances.
7.3. Forest workers shall receive adequate training and supervision to ensure proper implementation of the management plan.
7.4. While respecting the confidentiality of information, forest managers shall make publicly available a summary of the primary elements of the management plan, including those listed in Criterion 7.1.
PRINCIPLE 8: MONITORING AND ASSESSMENT
Monitoring shall be conducted -- appropriate to the scale and intensity of forest management -- to assess the condition of the forest, yields of forest products, chain of custody, management activities and their social and environmental impacts.
8.1 The frequency and intensity of monitoring should be determined by the scale and intensity of forest management operations as well as the relative complexity and fragility of the affected environment. Monitoring procedures should be consistent and replicable over time to allow comparison of results and assessment of change.
8.2 Forest management should include the research and data collection needed to monitor, at a minimum, the following indicators:
a) Yield of all forest products harvested.
b) Growth rates, regeneration and condition of the forest.
c) Composition and observed changes in the flora and fauna.
d) Environmental and social impacts of harvesting and other operations.
e) Costs, productivity, and efficiency of forest management.
8.3 Documentation shall be provided by the forest manager to enable monitoring and certifying organizations to trace each forest product from its origin, a process known as the "chain of custody."
8.4 The results of monitoring shall be incorporated into the implementation and revision of the management plan.
PRINCIPLE 9: MAINTENANCE OF HIGH CONSERVATION VALUE FORESTS
Management activities in high conservation value forests shall maintain or enhance the attributes which define such forests. Decisions regarding high conservation value forests shall always be considered in the context of a precautionary approach.
DEFINITION (FSC): High Conservation Value Forests (HCV) are those that possess one or more of the following attributes: a) forest areas containing globally, regionally or nationally significant: · concentrations of biodiversity values (e.g. endemism, endangered species, refugia); and/or · large landscape level forests, contained within, or containing the management unit, where viable populations of most if not all naturally occurring species exist in natural patterns of distribution and abundance b) forest areas that are in or contain, rare, threatened or endangered ecosystems c) forest areas that provide basic services of nature in critical situations (e.g. watershed protection, erosion control) d) forest areas fundamental to meeting basic needs of local communities (e.g. subsistence, health) and/or critical to local communities´ traditional cultural identity (areas of cultural, ecological, economic or religious significance identified in cooperation with such local communities).
9.1 Assessment to determine the presence of the attributes consistent with High Conservation Value Forests will be completed, appropriate to scale and intensity of forest management.
9.2 The consultative portion of the certification process must place emphasis on the identified conservation attributes, and options for the maintenance thereof.
9.3 The management plan shall include and implement specific measures that ensure the maintenance and/or enhancement of the applicable conservation attributes consistent with the precautionary approach. These measures shall be specifically included in the publicly available management plan summary.
9.4 Annual monitoring shall be conducted to assess the effectiveness of the measures employed to maintain or enhance the applicable conservation attributes.
PRINCIPLE 10: PLANTATIONS
Plantations shall be planned and managed in accordance with Principles and Criteria 1 - 9, and Principle 10 and its Criteria. While plantations can provide an array of social and economic benefits, and can contribute to satisfying the world's needs for forest products, they should complement the management of, reduce pressures on, and promote the restoration and conservation of natural forests.
PLANTATION DEFINITION (FSC) Plantations are defined as tree-dominated vegetated areas in which human intervention, through planting or intensive silvicultural treatments, has yielded conditions in which only a few of the characteristics of the indigenous natural forest ecosystem remain.
10.1 The management objectives of the plantation, including natural forest conservation and restoration objectives, shall be explicitly stated in the management plan, and clearly demonstrated in the implementation of the plan.
10.2 The design and layout of plantations should promote the protection, restoration and conservation of natural forests, and not increase pressures on natural forests. Wildlife corridors, streamside zones and a mosaic of stands of different ages and rotation periods, shall be used in the layout of the plantation, consistent with the scale of the operation. The scale and layout of plantation blocks shall be consistent with the patterns of forest stands found within the natural landscape.
10.3 Diversity in the composition of plantations is preferred, so as to enhance economic, ecological and social stability. Such diversity may include the size and spatial distribution of management units within the landscape, number and genetic composition of species, age classes and structures.
10.4 The selection of species for planting shall be based on their overall suitability for the site and their appropriateness to the management objectives. In order to enhance the conservation of biological diversity, native species are preferred over exotic species in the establishment of plantations and the restoration of degraded ecosystems. Exotic species, which shall be used only when their performance is greater than that of native species, shall be carefully monitored to detect unusual mortality, disease, or insect outbreaks and adverse ecological impacts.
10.5 A proportion of the overall forest management area, appropriate to the scale of the plantation and to be determined in regional standards, shall be managed so as to restore the site to a natural forest cover.
10.6 Measures shall be taken to maintain or improve soil structure, fertility, and biological activity. The techniques and rate of harvesting, road and trail construction and maintenance, and the choice of species shall not result in long term soil degradation or adverse impacts on water quality, quantity or substantial deviation from stream course drainage patterns.
10.7 Measures shall be taken to prevent and minimize outbreaks of pests, diseases, fire and invasive plant introductions. Integrated pest management shall form an essential part of the management plan, with primary reliance on prevention and biological control methods rather than chemical pesticides and fertilizers. Plantation management should make every effort to move away from chemical pesticides and fertilizers, including their use in nurseries. The use of chemicals is also covered in Criteria 6.6 and 6.7.
10.8 Appropriate to the scale and diversity of the operation, monitoring of plantations shall include regular assessment of potential on-site and off-site ecological and social impacts, (e.g. natural regeneration, effects on water resources and soil fertility, and impacts on local welfare and social well-being), in addition to those elements addressed in principles 8, 6 and 4. No species should be planted on a large scale until local trials and/or experience have shown that they are ecologically well-adapted to the site, are not invasive, and do not have significant negative ecological impacts on other ecosystems. Special attention will be paid to social issues of land acquisition for plantations, especially the protection of local rights of ownership, use or access.
10.9 Plantations established in areas converted from natural forests after November 1994 normally shall not qualify for certification. Certification may be allowed in circumstances where sufficient evidence is submitted to the certification body that the manager/owner is not responsible directly or indirectly for such conversion (see also Criterion 6.10).