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Click to edit Master title style,Click to edit Master text styles,Second level,Third level,Fourth level,Fifth level,*,*,*,ABORIGINALCONSULTATIONUPDATE,Presented to,Alberta Chamber of Resources,Calgary,AB,June 6,2007,Stan Rutwind,QC,Acting Director,Constitutional Law and Aboriginal Law,Alberta Justice,Edmonton,June 1,2007,The view of this paper are those of the Presenter only,and are not necessarily the views of Alberta Justice,Mikisew Cree First Nation,v.,Canada,Copps,Thebacha Road Society et al.,Released November 24,2005,Unanimous decision of Supreme Court of Canada,The Facts,Canada approved a 118 km Winter Road in Wood Buffalo,which passed through Mikisews Reserve.,Mikisew objected to road approval.,TREATY 8 COMPETING INTERESTS,First Nations have a right to hunt,fish and trap for food.,vs.,Canada and Alberta have a right to take up lands from time to time for settlement,mining lumbering,etc.(“Taking Up Clause),PRE-,MIKISEW,Sparrow,Approach,Infringement and justification,Halfway River,Approach,Taking ups infringe,Haida,and,Taku,Asserted aboriginal rights can trigger duty of consultation,Not in a treaty area,MIKISEW,APPROACH:,Consultation is the road to reconciliation.(50),(63),There is a freestanding duty of consultation which flows from the honour of the Crown.It is independent of the duty of consultation which is a component of the,Sparrow,justification.(33),R.,v.,Sparrow(1990),the Supreme Court of Canada held that if the Crown infringes treaty rights it is open to the Crown to justify that infringement.One component of that justification is consultation.,The duty of consultation flowing from the honour of the Crown is a procedural treaty right and there is no link to fiduciary duties.(51),(57),The Crown has a treaty right to take up lands(31)and the taking up does not infringe a treaty right(32)(yet see paragraph 48).The Crown has an obligation to inform itself of the impact the project will have on treaty rights and communicate that to First Nations.,“Other purposes in the taking up clause of the treaty should be interpreted broadly.The creation or a road clearly falls into the category of“other purposes.(24),(60),The trigger threshold for the duty of consultation is slight is there the potential for adverse impacts on treaty rights?(64),The content of the duty of consultation is variable and is at the low end of the scale for surrendered lands subject to the taking up limitations and where,as here,the taking up is relatively minor the creation of a road.(64),There must be notice to the First Nation,engagement with them including information about the project,the Crowns knowledge of the impact on those interests and the Crowns view of potential adverse impacts on those interests.The Crown must solicit and listen carefully to First Nations concerns and attempt to minimize impact on treaty rights.(64),The First Nation must carry out their end of the consultation,make their interests known,respond to the Crowns attempt to meet their concerns and suggestions and try to reach some mutually satisfactory solution.(65),There is no First Nation veto.(66),The treaty right(e.g.hunting)is linked to hunting in that First Nations traditional territory.(47),If there is no more meaningful right to hunt in traditional territories there would be a potential action for treaty infringement and a demand for,Sparrow,justification.(48),Private Lands:,Hupacasath First Nation,v.,British Columbia,2005 BCSC 1712,Application for Judicial Review of decisions granting requests by,Weyerhaeuser,to remove privately owned land from TFL44 and to determine new allowable cut.,Crown has duty to consult on private land where Crowns actions might adversely affect Aboriginal rights and title.,Content of duty is at low level.,Paul First Nation,v.,Parkland(County),2006 ABCA 128,Paul Band argued Crown required to consult before Subdivision and Development Appeal Board issued permit.,There is no duty of consultation on the Crown on landowners regarding privately held lands.,Hupacasath,distinguished as it involved an operative transfer of lands into a publicly funded program followed by an attempt to remove lands out of that program.,Standard of Review,Haida Nation,v.,British Columbia(Minister),2004 3 S.C.R.511,2004 SCC 73,Process likely subject to standard of reasonableness,Misconception of seriousness of claim or impact of infringement is likely subject to standard of correctness,Delegation,Haida Nation,supra,Duty of consultation on the Crown,It may delegate procedural aspects of the duty,Early Consultation,R.,v.,Douglas et al.,2007 BCCA 265,Sparrow,justification case,Issue of adequacy of consultation,Consultation is a two way street,Also,where appropriate consultation is held on a strategy,there is no need to consult on subsequent actions where they are consistent with the overall strategy,Also see,Haida Nation,para.75-76,Injunctions,Platinex v.Kitchenuhmaykoosib Inninuwug First Nation,2006 O.J.No.3140(Ont.S.C.J.).(“Platinex 1),Released July 28
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