Canada: Aboriginal Law - Resources Development - Legal And Practical Issues

May 2012 — Understanding Aboriginal law and Aboriginal issues is essential to the harmonious development of natural resources projects. Several recent court decisions have established the parameters and limits of Aboriginal rights.

INTRODUCTION

• Aboriginal people are key stakeholders in resource development projects, especially on northern lands;
• Projects that might have an adverse effect on Aboriginal rights may give rise to a duty of the Crown to consult and to accom - modate Aboriginal people, which is enforceable by the courts;
• In any event, industrial promoters would be well advised to ensure that their projects are viewed as socially and environmentally acceptable by Aboriginal people, beyond legal or regulatory requirements;
• Understanding Aboriginal law, which involves complex questions of public and constitutional law among others, is therefore fundamental;

ABORIGINAL PEOPLE OF THE PROVINCE OF QUÉBEC

• Aboriginal people were the first inhabitants of Canada. The Province of Québec currently comprises 55 Aboriginal communities, divided among 11 Aboriginal nations, including 10 First Nations and the Inuit;
• On the territory of the Plan Nord, north of the 49th Parallel, there are the Cree, the Naskapi (near Schefferville), the Innus (or Montagnais, on the North Shore) and the Inuit (north of the 55th Parallel, essentially);

ABORIGINAL RIGHTS – GENERAL CONCEPTS

• The Aboriginal people of Canada were never conquered by colonial powers. Consequently, they maintain ancestral rights that result from their occupancy and historical use of their tribal lands;
• Ancestral rights, the intensity of which varies based on their degree of connection with the land, include Aboriginal titles and the rights to customs, practices and traditions forming an integral part of the distinct culture of the Aboriginal group;
• Aboriginal rights also include rights under treaties entered into between the Crown and the Aboriginal people;
• Aboriginal rights are constitutionally protected, which means that ancestral or treaty rights may not be unilaterally modified or extinguished by legislation – Sections 25 and 35(1) of The Constitution Act, 1982;
• Litigation in connection with the development of James Bay paved the way for the signature, in 1975, by the Cree, the Inuit, the Governments of Québec and Canada and Hydro- Québec, of the James Bay and Northern Québec Agreement. The Naskapi of the Schefferville region signed the Northeastern Québec Agreement in 1978;
• The James Bay and Northern Québec Agreement and the Northeastern Québec Agreement are legally treaties signed between Aboriginal nations and the Crown and are hence constitutionally protected – see Québec (Attorney General) v. Moses, [2010] 1 S.C.R 557;
• These Agreements represent a general settlement of the land claims of the Cree, the Inuit and the Naskapi over a large portion of the territory of the Province of Québec, and grant these nations political autonomy, hunting and fishing rights, and financial compensation;
• The Agreements provide that the claims, rights, titles and interest of the Aboriginal people in the relevant lands are extinguished, in consideration of specified benefits. They establish a land regime for the fair distribution of the exclusive rights and privileges granted to Aboriginal people, while allowing the development of the territory – Category I, II and III lands. They include environmental assessment processes that are distinctive because of the active involvement of Aboriginal people, thus enabling them to protect their rights and interests;
• It is to be noted that the environmental assessment process for a provincial development project under the James Bay and Northern Québec Agreement, such as a mine, a dam or a road, does not exempt the promoter from securing the required federal authorizations – Québec (Attorney General) v. Moses;
• The provisions of the James Bay and Northern Québec Agreement and of the Northeastern Québec Agreement were enacted in a number of federal and provincial statutes, including An Act Respecting the Land Regime in the James Bay and New Québec Territories, R.S.Q, c. R-13.1 and the Environment Quality Act, R.S.Q., c. Q-2;
• Not all Aboriginal communities in Québec have signed treaties with the Crown settling their land claims. Consequently, several Aboriginal communities are still claiming rights over large portions of the territory of Québec, without such rights being precisely defined;
• Among these are the Innus, whose ancestral land, the Nitassinan, covers large parts of the North Shore and the Saguenay-Lac-Saint-Jean;
• Several Innu communities have undertaken separate land claims negotiations with a view to entering into a treaty with the Governments of Québec and Canada. An agreement in principle was signed in 2004 which provides the framework for negotiations – Agreement in Principle of General Nature Between the Innus, the Government of Québec and the Govern ment of Canada, but a signed treaty has yet to materialize;

THE CROWN'S DUTY TO CONSULT AND TO ACCOMMODATE AND ITS IMPACT ON PROMOTERS

The Crown's Duty to Consult

• The courts have recognized that the Crown has a duty to act honourably towards Aboriginal people, a duty which arises when the Crown is aware of the potential existence of Aboriginal rights and is contemplating measures that might adversly affect such rights, e.g. the issuance of governmental permits or authorizations in connection with mining, forestry or hydroelectric projects;
• Prior to the cases of Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 and Taku River Tlingit First Nation v. British Columbia (Project Assess - ment Director), [2004] 3 S.C.R. 550, courts required that the Aboriginal people prove their rights before the Crown had to justify any infringement of those rights;
• In Haïda Nation and Taku River, the Supreme Court ruled that the Crown had a duty to consult Aboriginal people, even before Aboriginal rights have been formally recognized, judicially or otherwise;
• The Supreme Court established that the scope of the duty to consult will vary according to the circumstances and will depend on the preliminary assessment of the strength of the evidence of the Aboriginal right claim and the seriousness of the potentially adverse effects on such right – Haïda Nation and Taku River;
• The courts have held that the duty to consult applies to the exploration and sampling phases of a mining project, inasmuch as these activities may have an impact on Aboriginal ancestral or treaty rights – see West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (British Columbia Court of Appeal);
• However, past wrongs of the Crown, speculative impacts, and adverse effects on a future negotiating position have been found not to be sufficient, in principle, to create a duty to consult – Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650;
• Even though the parties to a modern treaty, such as the James Bay and Northern Québec Agreement, may agree on the modalities of consultation under certain circumstances or for certain projects, the Crown cannot contract out of its duty of honourable dealing with Aboriginal people, and such duty continues indefinitely – see Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103;
• The duty to consult does not comprise a duty to reach an agreement nor does it confer a veto to Aboriginal people. Good faith consultations may however give rise to a duty to accommodate – in other words to adapt the measures contemplated to take into account the information acquired during the consultation – Haïda Nation and Taku River;
• The Aboriginal parties have a reciprocal obligation to participate in consultations, to make their concerns known and to attempt to reach a mutually satisfactory solution – see Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, para. 65;
• Aboriginal rights are collective rights and, in principle, the duty to consult applies to Aboriginal communities and not to their individual members – see Beckman v. Little Salmon/ Carmacks First Nation, para. 35;
• The affected Aboriginal communities may bring legal proceedings following a breach of the duty to consult. For example, the purpose of the "Haïda Motion" is to seek a declaration that there was a default or absence of consultations or accommodation measures, and to seek a remedy, e.g. that governmental decisions breaching the duty to consult of Aboriginal people be quashed – see Kruger inc. c. Première Nation des Betsiamites, 2006 QCCA 569 (Court of Appeal of Québec);

The Impact of the Duty to Consult on Promoters

• The Supreme Court has stated that the duty to consult and to accommodate is imposed on the Crown – whether Federal or Provincial, and cannot be delegated, although the Crown may delegate certain procedural aspects of the consultation to industrial promoters – Haïda Nation and Taku River;
• See the Government of Québec's Interim Guide for Consulting the Aboriginal Communities (2008) – the duty to consult lies with the Crown but promoters may take part in the process so as to ensure the smooth unfolding of the consultation, e.g. to explain certain technical aspects of the project and with regard to the determination and implementation of accommodation measures;
• In practice, promoters may have an important role to play in consultations, in particular with regard to accommodation measures, which may be reflected in socioeconomic agreements;

SOCIOECONOMIC AGREEMENTS

• Industrial promoters may wish to interact directly with Aboriginal people in order to facilitate the development of their projects;
• Such discussions may result in agreements of several types – Cooperation Agreements, Pre Production Agreements, Impact and Benefit Agreements ("IBAs"). An IBA is a confidential contractual agreement between an Aboriginal community and a business entity pursuant to which the community gives its approval to a development project in consideration of specified benefits;
• IBAs may cover the following matters: the approval of the project by the Aboriginal party; a mechanism for coordinating and transmitting information between the parties; employment priority for Aboriginal people and labour relations; contracts and business opportunities for Aboriginal businesses; enhanced environmental clauses; and provisions providing for monetary compensation or royalties;
• The James Bay and Northern Québec Agreement and the Northeastern Québec Agreement do not formally require promoters to enter into IBAs with Aboriginal communities;
• However, IBAs are likely unavoidable considering that they are designed to ensure the social and environmental acceptability of a development project to Aboriginal communities, beyond legal or regulatory requirements;
• Nevertheless, in assessing the relevance or necessity of an IBA, the existence and credibility of Aboriginal claims must be considered. The possibility that several Aboriginal communities may have competing claims over the same land must also be considered;
• IBAs do not replace the duty to consult that lies with the Federal or Provincial Crown. Hence, it is essential that the Crown properly discharge its duty to consult Aboriginal people in connection with development projects;

CONCLUSION

• Aboriginal people are among the founding people of Canada and have never been conquered. Consequently, they maintain rights, ancestral or treaty-based, that result from their occupancy and historical use of their tribal lands. These collective rights of Aboriginal people have been recognized and enforced by courts on many occasions;
• Very large portions of the territory of Québec, in particular the territories of the Plan Nord, north of the 49th Parallel, are subject to treaties with the Cree, the Inuit and the Naskapi, or subject to land claims, including those of the Innus;
• Any development project that might adversly affect Aboriginal rights may give rise to a duty of the Crown to consult, which may require the participation of promoters, and which may be enforced by the courts;
• Consultation is not a mere administrative duty. As indicated by Madam Justice Deschamps in Beckman v. Little Salmon/ Carmacks First Nation (para. 103): the duty to consult aims "to assist in reconciling the interests of Aboriginal people with those of other stakeholders";
• Beyond legal requirements, however, the acceptability of projects from the perspective of the Aboriginal communities concerned is essential to the harmonious development of the land.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.