ABORIGINAL RIGHTS AND NATURAL RESOURCES MANAGEMENT FEBRUARY 7, 2013

Overview Canada’s Constitution and aboriginal and treaty rights of Aboriginal Peoples Overview of Royal Proclamation, treaties, modern claims agreements Management of natural resources under modern claims agreements Duty to consult and accommodate

Constitution and Aboriginal and Treaty Rights Constitution Act 1982 S. 35.(1) The existing aboriginal and treaty rights of aboriginal peoples of Canada are hereby recognized and affirmed (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.

Constitution and Aboriginal and Treaty Rights –“Full box” or “Empty box” interpretation? –Does s.35 entrench the full breadth of aboriginal and treaty rights such that they cannot be undermined or infringed by federal or provincial laws? –Yes Sparrow case 1990 –Aboriginal and treaty rights for First Nations vary across Canada –Inuit and especially Metis rights differ from those of First Nations

Constitution and Aboriginal and Treaty Rights –Rights must be in existence in 1982 to be protected by s.35 –Sparrow test allowing justification of laws that infringe aboriginal/treaty rights Member of Aboriginal group that possesses continuing aboriginal/treaty right? Identify treaty provision or demonstrate that activity is a tradition since contact, integral to Aboriginal culture Prove that activity has continued to present Onus of proof on Crown has right has been extinguished

First Nations Treaties

Royal Proclamation of 1763 No land transfers of Aboriginal lands except to the Crown Friendship treaties Provided hunting, fishing gathering rights, trading rights Southern Ontario/Robinson treaties Provided for surrender of lands, recognized hunting rights, established reserves

First Nations Treaties Numbered treaties Most purported to surrender aboriginal title Established small land reserves Protected harvesting rights on unoccupied Crown Lands Indian Act Governance by Indian bands on reserves (minor role managing natural resources, environment subject to oversight by Minister of Aboriginal Affairs)

Modern Comprehensive Claims

Comprehensive Claims Agreements Modern era of aboriginal claims settlement dates from 1973 Canada policy Comprehensive vs. specific claims Comprehensive claims based on assertion of continuing Aboriginal rights and/or title to lands and natural resources Achieve certainty of land tenure through surrender of title to Crown (recent approaches differ)

Comprehensive Claims Agreements Agreements provide rights and benefits (title to some land, rights to other lands, financial benefits, joint management regimes for resources Joint management (co-management) regimes (wildlife, water, land use planning and management, environmental assessment) Trending toward self-government

Comprehensive Claims Agreements Political pressure to negotiate claims agreement resulted in part from the LaGrande Hydroelectric and Mackenzie Pipeline projects in late 1970s

La Grande Hydro Project

Quebec began developing northern hydroelectric resources in the north in 1960s James Bay Hydroelectric Project (La Grande) was proposed in April 1971 without consultation with Cree and Inuit of northern Quebec Quebec Association of Indians won injunction on November 15, 1973 in Quebec Superior Court blocking development until agreement reached

La Grande Bay Hydro Project Injunction overturned by Quebec Court of Appeal seven days later, but no legal requirement that Quebec negotiate treaty Negotiations continued for next year leading to agreement in principle between Canada, Quebec, Hydro-Quebec, Cree and Inuit James Bay and Northern Quebec Agreement (1975) includes governance framework for social, economic development, environmental protection and assessment regime for new development projects

James Bay and Northern Quebec Agreement (JBNQA) Canada, Quebec, Cree, Inuit signed JBNQA in 1975 JBNQA paramount over all other laws of general application Established governance framework for social, economic development, environmental protection

Mackenzie Valley Pipeline

Proposed natural gas pipeline from Beaufort Sea to northern Alberta along Mackenzie Valley, connecting to Prudhoe Bay along Yukon North Slope Canada issues Pipeline Guidelines in 1970, 1972 Berger Inquiry established by order in council in 1974, reported in 1977

Mackenzie Valley Pipeline Inquiry Key Features “(T)his inquiry is not just about a gas pipeline; it relates to the whole future of the North” Addressed a wide range of issues not just biophysical impacts Held preliminary hearings seeking input on process and scope Travelled to all 35 communities to hear evidence from residents in own languages f

Mackenzie Valley Pipeline Inquiry Key Berger Recommendation: 10- year moratorium until aboriginal claims in northern Canada settled (Inuvialuit, Dene, Inuit, Yukon First Nations) Berger Inquiry led directly to negotiations and comprehensive claim agreements with Inuvialuit, Gwitch’in, Sah’tu and Yukon First Nations f

Duty to Consult and Accommodate as Entrenched Right Calder (1973) – Recognized existence of aboriginal title, that Governor Douglas’ proclamation of absolute sovereignty for B.C, was inconsistent with aboriginal title of Nisgaa First Nations Sparrow (1990) - Fisheries Act prohibition relating to net size invalid as infringing constitutionally entrenched aboriginal fishing right Van der Peet (1996) - What are the elements of an aboriginal right?

Duty to Consult and Accommodate as Entrenched Right Delgamuukw (1997) – Gitxsan and Wet’suwet’en First Nations claimed aboriginal title to 58,000 sq km of northwestern B.C. Aboriginal title is a right to the land itself, not just right to hunt, fish and gather When dealing with Crown land, government must consult with, and may have to compensate, First Nations whose rights are affected

Duty to Consult and Accommodate as Entrenched Right Haida Nation (2004) - Haida challenged B.C.Minister’s decision to issue tree farm licence without consulting Haida Crown must act honourably in dealing with Aboriginal people Constitutional duty to consult and accommodate arises when knowledge, actual or constructive, by Crown of Aboriginal claim/right, contemplated Crown conduct and potential that conduct may adversely affect Aboriginal claim/right

Duty to Consult and Accommodate as Entrenched Right Mikisew Cree (2005) – Construction of road through Wood Buffalo National Park without consultation infringed Cree treaty right to be consulted, and as necessary accommodated Ross River Dena Council (2012) – Yukon has duty to consult with Dena in determining whether mineral rights on Crown lands to be made available to third parties as well as prior to allowing mineral exploration activities (C.A.)

Summary Questions What obligations do governments have to aboriginal people when taking actions that interfere with their rights to hunt and fish? Are these rights procedural or substantive? Do the rights depend on a treaty? Cases focus mainly on harvesting rights. To what extent do aboriginal rights provide for conservation of wildlife and habitat? How should courts approach issues of aboriginal rights to use resources? Are such rights to be consistent with sustainable resource management?