New Brunswick & Treaty Rights

NEW BRUNSWICK FIRST NATION CONSULTATION POLICY 

 A Framework for Relations

With Governments and Industry

 September 2003  

OVERVIEW

 This document states the policy of the Union of New Brunswick Indians and First Nations regarding consultation by governments and industry with their member Nations. Each First Nation will determine their own policy, this document is a global template for their use and changes can be made.

This policy is based on fiduciary principles and constitutional requirements as interpreted by Canadian courts.  It sets out the approach to First Nations consultation that we will insist upon in all dealings with the Governments of Canada and New Brunswick and with private parties seeking to operate in the First Nations’ traditional or Treaty territory.

Part I of this paper describes the background and present status of the First Nations consultation in New Brunswick as well as the key constitutional principles.  Part II sets out the Consultation Framework itself.

PART I 

  1. BACKGROUND

The English in New England started into a treaty process with the Aboriginal people they came in contact with and starting in the late 1600’s and well into the 1700’s a series of peace and friendship treaties were signed with the Aboriginal peoples of northeastern north America including the Atlantic region of eastern Canada.  The most important series of treaties covering the Maritimes were signed in 1725, (Boston, Dummer’s Treaty) 1726, (Annapolis) 1749, (Nova Scotia) 1752 (Nova Scotia)  and 1760-1761 (Nova Scotia) culminating in the Royal Proclamation of 1763 which recognized the Aboriginal peoples rights to their land unless they surrendered it to the Crown.

From the outset, the Crown often chose to ignore its Treaty obligations.  It regularly acted in breach of both the oral promises and the written terms of the Treaties.  For many years, First Nations had no legal recourse for broken Treaty promises or other breaches of their rights, apart from appealing to the honour of the Crown.

That changed in 1982 when the Governments of Canada and the provinces, including New Brunswick, agreed to entrench Treaty and Aboriginal rights in the Constitution.  Section 35 (1) of the Constitution Act, 1982 now gives First Nations’ rights constitutional protection from Crown infringement.  This means that the Governments of Canada and New Brunswick are constitutionally bound to respect the Treaty and Aboriginal rights of the First Nations, and can be held legally accountable when they do not.

  1. PRESENT STATUS

Despite this new constitutional reality, both Canada and New Brunswick have failed to recognize and implement their obligations under s.35 (1).

  1. KEY CONSTITUTIONAL PRINCIPLES

This policy is based on twelve key constitutional principles.  These principles will form the starting point of any discussions with government or industry:

Rights and Obligations

  1. New Brunswick First Nations have and assert Treaty and unextinguished Aboriginal rights.  These rights are protected by s. 35(1) of the Constitution Act, 1982.  The governments of Canada and New Brunswick are constitu-tionally bound to respect these rights, and are subject to legal recourse when they fail to do so.
  1. Both the federal and provincial Crown stands in a fiduciary relationship to New Brunswick First Nations.  Private third parties also owe fiduciary obligations to the First Nations when they are under Crown authority in ways that might affect the rights and interests of the First Nations i.e. Maritime and Northeast Pipeline Company, Pulp and Paper companies, etc.
  1. Actions of the Crown, as well as actions of third parties authorized by the Crown, that are inconsistent with the First Nations’ rights are invalid unless they can be justified according to fiduciary principles and the test laid down by the Supreme Court of Canada in R. v. Sparrow.
  1. Neither the Natural Resources Transfer Agreement, 1930, nor the federal/ provincial agreement of 1958 and the assertion of “provincial ownership” and control of natural resources in New Brunswick affect the constitutional obligations of the governments of Canada and New Brunswick to New Brunswick First Nations.
Infringement and the Sparrow Framework

 

  1. Actions taken by the Crown that directly of indirectly limit First Nations’ rights are presumed to infringe s. 35(1) of the Constitution Act, 1982 and must be justified according to the R. v. Sparrow test.
  1. The burden of justification is high and lies solely on the Crown.  The Crown must show that the infringement of First Nations’ rights:

(1)    serves a compelling and substantial objective; and

(2)    is consistent with the Crown’s fiduciary obligation.

  1. Justification under the Sparrow test requires the following:

-adequate consultation in good faith, to identify and address First Nations’ interests and concerns;

-adequate priority to First Nations rights versus those of other stakeholders;

-minimal impact on First Nations’ rights;

-mitigation measures to avoid impacts and to ensure that any impact that does occur is “as little as possible”;

-fair compensation for unavoidable infringements; and

-other efforts to ensure sensitivity and respect for First Nations’ rights.

Nature of the Consultation Process

 

  1. These requirements can only be met through a First Nations-specific consultation process.  New Brunswick First Nations are legally entitled to, and will insist upon, a distinct process directed to their own issues, interests, and concerns, and separate from any existing public processes.
  1. These requirements are triggered without the First Nations first having to go to court to prove their rights.  Governments are under a positive duty to be alert to possible infringements of Treaty and Aboriginal rights that might result from the exercise of Crown authority, and to be pro-active in avoiding or limiting any impacts.
  1. Although the Sparrow requirements are pre-requisites for the validity of Crown action, they do not end at the decision-making stage.  They are on-going and continuing for as long as Crown authority is being exercised.
  1. Where a third party is acting under Crown authority, the duties are owed both by the third party carrying out the activity, and by the Crown in its on-going supervisory role.
  1. The obligations of the Crown and the third party run parallel.  However, this does not reduce or replace the Crown’s own constitutional and fiduciary duties to First Nations.  The Crown’s duties cannot be delegated.

PART II

CONSULTATION FRAMEWORK 

This Consultation Framework sets out the process, which will guide us when interacting with Governments and industry. The validity of any action having an impact on the First Nations is conditional on the on-going fulfilment by Canada and New Brunswick and third parties of their constitutional and fiduciary obligations to consult with our First Nations in accordance with this Framework.

  1. PURPOSE

New Brunswick First Nations understand that federal and provincial decision-making and economic development in New Brunswick will affect them in both positive and negative ways.  We do not seek immunity, but to be full participants in decisions that affect us.  We seek to ensure that our rights and interests are respected, so as to minimize harmful effects and maximize beneficial ones.  In this regard:

-Our First Nations are deeply concerned about the social, environmental, ecological and cultural impacts these activities have on Crown decision-making and Crown-authorized activity on their lands and peoples.  They are concerned about the direct and indirect restrictions that will result to the exercise of their Treaty and Aboriginal rights, and on the impact this will have on their traditional way of life.

-Our First Nations are not opposed to economic development or other forms of change, but seek to share in its benefits.  They need to ensure that development of resources and other assets takes place in a manner that is sensitive to their rights, traditions, values and culture.  Our First Nations must be involved in the control and management of development that affects them, and they demand a share of the social and economic benefits that follow.

The Consultation Framework is the means to give effect to these goals.  It will guide and structure the relationship of our First Nations with governments and industry in all future dealings.

  1. APPLICATION

This Framework applies to all Crown decision-making and action by the governments of both Canada and New Brunswick that has the potential to affect the rights and interests of all our First Nations in New Brunswick.  This includes all Crown activity relating to the granting, renewal or transfer of tenures, rights, interests, leases, licences or permits by the Crown.  It also includes all other activities of government, whether legislative, regulatory or administrative in nature.

This Framework also applies to the actions of third parties, such as members of private industry, operating under Crown authority.  These third parties also owe fiduciary obligations to the First Nations in carrying out activities that affect them.

This Framework is not restricted to Crown decision-making, but applies to the on-going exercise of Crown authority.  It would thus apply not only to the Crown’s decision to grant a permit or issue a license, but to all work carried out under that permit or issue a license.

This Framework applies to impacts on our First Nations, wherever they occur within New Brunswick – whether on reserves, traditional territory or any other territory where Treaty and Aboriginal rights are exercised.

3.         NATURE OF THE DUTY TO CONSULT

In the Delgamuukw case, the Supreme Court of Canada made it clear that

-there is always a duty to consult;

-the nature and scope of the duty will vary in the circumstances;

-consultation requires a genuine attempt to address the concerns of the First Nations;

-normally, the duty will be “significantly deeper” than mere consultation;

-in some cases, it will require full First Nations consent.

The duty to consult must be carried out in good faith, based on full recognition of the rights and interests of our First Nations.   The purpose of consultation is to find an accommodation between First Nations’ interests, and those of the Crown and industry.  The accommodation of Treaty and Aboriginal rights extends to their economic, social, religious and cultural interests.

This first goal of consultation is to avoid any negative impacts on our First Nations and their members.  Where some impact is unavoidable, the goal is then to ensure that it is minimized and that the First Nations are properly compensated.

The duty to consult requires

-the affected First Nations is/are fully informed in a timely manner;

-that they be given a meaningful opportunity and capacity to express their interests and concerns; and

-that their views be given serious consideration and adopted.

-First Nations consent will be required.

The duty to consult will not be fulfilled by simply treating First Nations the same as other stakeholders.  First Nations are entitled to a distinct consultation process, addressed to their unique rights, interests and concerns.

  1. CONSULTATION GUIDELINE

The Governments of Canada and New Brunswick, as well as third party industry, must consult with New Brunswick First Nations according to the following guidelines:

  • Acknowledgment of Rights

The consultation process must begin with an express acknowledgment by the Crown and third parties that New Brunswick First Nations have constitutionally protected Aboriginal rights and Treaty rights and interests.  They must accept that protecting and honouring the First Nations’ rights is the starting point of consultation, and the overriding goal of the consultation process.

  • Provision of Information

The First Nations must be provided with all relevant information concerning a proposed decision in a timely way.  They must be fully informed, not just about the details of the proposed decision or action, but about its potential impact on them – what it will mean for the First Nations’ land, peoples, rights, title and existing relationships and activities.

The Crown and third parties have a positive duty to gather and assemble the necessary information and provide it to the First Nations.  This will often require commissioning independent studies and/or providing the First Nations with the resources and capacity to undertake the necessary analysis (see “Capacity-building”).  This must be done at the earliest possible stage.

The information must extend beyond the specific decision or proposal to examine broader, cumulative impacts.  Impacts cannot be considered in isolation, but only in the context of pre-existing impacts already experienced by the First Nations.

The provision of information is only the critical first step in the consultation process.  On its own, it cannot satisfy even the most minimal consultation requirement.  First Nations must also have an opportunity to respond, be heard, and have their consent (see “Two-way Process”).

  • Capacity-building

For consultation to be meaningful, the First Nations must be provided with the time and resources to enable them to participate effectively.  This requires funding for the hiring of the necessary in-house personnel and outside expertise.  The First Nations require sufficient resources to enable them to process and respond to applications, to conduct their own analysis, and to engage in meaningful discussions with the Crown and/or third parties.

  • Two-way Process

Consultation with the First Nations must be a two-way process.  This involves much more than the mere provision of information or the communication of decisions after-the fact.  The First Nations must be given an opportunity to express their interests and concerns and have them addressed in a meaningful way.

Problems or concerns identified by the First Nations must be specifically responded to.  Suggestions offered by the First Nations cannot be ignored; they must either be adopted, or valid reasons for rejection provided.

  • Avoiding Impacts

The first goal of consultation must be to avoid impacts on the First Nations’ rights and interests altogether.  The onus is on the Crown (and third parties, if any) to ensure that all reasonable alternatives that do not negatively impact on Treaty and Aboriginal rights has been considered.

  • Minimizing Unavoidable Impacts

If some degree of impact is unavoidable, the goal of consultation is to ensure that every possible effort is made to minimize the impact on the First Nations.  Again, the onus is on the Crown and third parties to examine all reasonable alternatives and to adopt the approach that impacts on the First Nations as little as possible.  By definition, the First Nations must be directly involved in this process.

  • Priority

Minimizing impacts requires that the First Nations’ interests be given first priority in relation to the Crown’s objectives and the interests of third parties.  First Nations priority is required by fiduciary principles.  The fiduciary relationship requires that the Crown not allow the interests of a third party, or its own interests, to trump its overriding obligations to the First Nations.

  • Fair Compensation

Even where impacts are minimized to the greatest extent possible, First Nations must be provided with compensation for impacts that remain.  Consultation is necessary to determine the level and form of compensation.

  • First Nations Involvement and Benefit-Sharing

Part of the process of ensuring adequate priority, minimal impact and fair compensation is to ensure that the First Nations are actively involved in decision-making, in the on-going control and management of projects including natural resource projects, and that they share in economic and other benefits.  This includes ensuring employment opportunities for First Nations members, as well as revenue sharing for the First Nations involved.  The First Nations must also remain active in any monitoring of the project, to ensure that the requirements of consultation, priority, minimal impacts and fair compensation are met on an on-going basis.

  • Mitigation, Accommodation and Compensation (MAC) Plan

The above efforts to minimize impacts and ensure fair compensation must be set out in a detailed Mitigation, Accommodation and Compensation (MAC) Plan.  The MAC Plan must lay out specific commitments in the way of mitigation, accommodation and compensation measures (such as, for example, steps to reduce impacts on wildlife movement and habitat, and commitments to environmental restoration, employment and job-training).

The MAC Plan is binding on both the Crown and third parties.  The Crown, as fiduciary, has the duty to supervise and enforce compliance with its terms.

  • Timing and Consequences

Consultation for the purpose of avoiding and minimizing impacts and accommodating the rights and interests of First Nations must be completed prior to the decision being made, the action carried out or the authorized activity-taking place.  Otherwise, the decision can be invalidated.

The duty does not end there.  Mitigation and accommodation measures must continue for the duration of the authorized activity; otherwise, both the decision and any action taken pursuant to it are subject to invalidation, and both the Crown and third parties are potentially liable for damages.  This could include an accounting of profits.

  1. 5.      REQUIREMENTS FOR INDUSTRY

Based on the above guidelines, New Brunswick First Nations will insist on the following terms in their relations with industry:

-A clear written acknowledgment by the company of the Treaty and unextinguished  Aboriginal rights of New Brunswick First Nations.

-Detailed information not only on the specific project proposed, but also on the company’s short, medium- and long-range plans in the area.  All proposals must be analyzed in relation to existing development, both by the company concerned and others.

-All company documentation must expressly identify the rights and interests of our First Nations.  This includes all information provided to shareholders, purchasers, lenders, governments and members of the public.  This will put all interested persons on notice that the company’s interests are encumbered by the rights and interests of the First Nations.  Failure to do so will render the company liable as a constructive trustee.

-Specific commitments to ensure that the affected First Nations are compensated for impacts and losses from the project, and that they share fully in its benefits.  This will normally be done through the MAC Plan.  These commitments will address matters such as revenue sharing, employment opportunities, capacity funding, hunting, fishing and trappers’ compensation and environmental restoration (to name only a few).

-A written commitment not to proceed with a project until the consultation process and necessary accommodations are complete.  This includes the design and implementation of the MAC Plan.

-The company must also acknowledge that its obligations continue for the duration of the project, and must agree to cease all activity if disputes arise as to compliance with the plan.

  1. 6.      THREE PHASES OF CONSULTATION

New Brunswick First Nations see the elements of consultation a breaking down into three phases:

  1. Pre-consultation
  2. Public Regulatory Processes
  3. First Nations-Specific Processes

Phase I:  Pre-Consultation

 

This is the information stage, where the Crown and third parties gather and assemble all relevant information and provide it to the First Nations.  This includes project-specific information, as well as information regarding impacts on First Nations, including cumulative impacts.  As well as being provided with objective and comprehensive information, First Nations must be given the time and resources to enable them to properly analyze and process this information at a timeline determined by them and not because some regulatory body has come up with an arbitrary time line or deadlines.

Phase II:  Public Regulatory Processes

 

In many cases, a given project or decision will be subject to public regulatory processes (such as National Energy Board or New Brunswick Public Utilities Board hearings).  These processes do not represent First Nations consultation, since they are not directed to First Nations’ issues, interests and concerns.  They cannot substitute for a First Nations-specific consultation process.

The First Nations are entitled to take part in these processes, just like other stakeholders and interested parties.  However, whether they do so is entirely up to them, and this decision is strictly “without prejudice”: a decision by our First Nations to participate in an existing public process cannot be seen as adequate First Nations consultation, nor can a refusal to take part be seen as an attempt to frustrate the consultation process.

Phase III:  First Nations-Specific Processes

 

First Nations-specific consultation involves both direct, two-way consultation between First Nations and the Crown; and three-way consultation with First Nations, the Crown and industry.  This phase of consultation always involves, a positive duty to accommodate the First Nations’ unique rights, interests and concerns.  The outcome must meet all the Sparrow, Delgamuuk justification factors, including priority, mitigation and compensation.

Where impacts cannot be avoided entirely, the Crown and First Nations must agree on the necessary mitigation, accommodation and compensation measures.  Any third parties will then be brought in to work out the details of implementing these measures through a Mitigation, Accommodation and Compensation (MAC) Plan.

The requirements of Phase III consultation are on going.  First Nations-specific consultation must continue for the duration of the project or activity, as a condition of its on-going validity.  Both the Crown and third parties are bound by their parallel fiduciary obligations to ensure that the Sparrow and Delgamuuk requirements continue to be met.

CONCLUSION

 These are the “rules of engagement” that New Brunswick First Nations will apply in all future dealings with the Governments of Canada and New Brunswick and with industry.

The First Nations have developed this policy as an attempt to provide certainty in the face of the continuing refusal of the federal and provincial Crown to present any coherent strategy for First Nations consultation.  This failure is in clear breach of the Crown’s fiduciary and constitutional obligations.

 

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