On Common Ground: Using Dialogue to move from Barriers to Agreements

1
On Common Ground Using Dialogue to move from
Barriers to Agreements

• Roy W. Millen
• Blake, Cassels Graydon LLP
• Presentation to Industry Council for Aboriginal
  Business
• Vancouver, British ColumbiaJune 20, 2008

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Introduction

• Legal context guides actions of Crown, industry
  and aboriginal people
• Courts have decreed consultation as means of
  reconciliation
• Three-way process requiring good faith
  participation by all

3
Overview

• Background
• Legal foundations
• Analysis
• Examples
• Best practices

4
Background

• Courts more receptive to aboriginal claims for
  past 10 years
• Governments and industry too often ignoring /
  downplaying aboriginal rights
• Courts try to level playing field for aboriginals

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Why does this matter?

• Everyone needs to understand each others roles
  and responsibilities
• Courts pushing parties to avoid / resolve
  disputes
• Fair and mutual participation fosters creative
  solutions

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Legal foundations

• Haida aboriginal claimants must not frustrate
  the Crowns reasonable good faith attempts, nor
  should they take unreasonable positions to thwart
  government from making decisions or acting in
  cases where, despite meaningful consultation,
  agreement is not reached.

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Legal foundations (cont.)

• Mikisew there is some reciprocal onus on the
  Mikisew to carry their end of the consultation,
  to make their concerns known, to respond to the
  governments attempt to meet their concerns and
  suggestions and to try to reach some mutually
  satisfactory solution.

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Legal foundations (cont.)

• Haida and Mikisew both quashed Crown decisions
  for inadequate consultation
• Both also affirmed need for good-faith
  participation by aboriginal communities
• Both held that aboriginal communities have no
  veto over development

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Analysis

• Courts emphasize need for reciprocity in
  consultation
• Crown / industry conduct is judged, but so is
  that of First Nations
• First Nations may be denied a remedy for
  inadequate conduct

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Analysis (cont.)

• Result the bar has been raised for aboriginal
  leaders
• Higher expectations as to degree of
  responsiveness and engagement in the process

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Analysis (cont.)

• Why?
• Crown and industry got the message consultation
  now common
• FNs receiving some resources to consult
• Demonstrating greater sophistication
• Expected to understand the process and their role

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Analysis (cont.)

• Fair?
• Aboriginal resources still far less than Crown /
  industry
• Crown / industry will not fund challenge to
  process
• FN education, economic development still
  challenging

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Examples

• Heiltsuk v. BC (Omega Salmon) (2003 BCSC)
• Zero tolerance
• Unwillingness to consider meetings as
  consultation
• Frustrating the process

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Examples (cont.)

• Platinex v. Kitchenuhmaykoosib Inninuwug FN
  (2007-2008 Ont. S.C.J.)
• KI wanted a moratorium until after consultation
• Initially successful injunction on exploration
• KI came with clean hands
• Court lifted injunction, set Consultation
  Protocol
• KI leaders jailed for contempt for refusing
  Platinex access

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Examples (cont.)

• R. v. Douglas (2007 BCCA)
• DFO multilateral process to consult FN re Fraser
  fishery
• Cheam refused to participate
• ?Joint consultation of FN consideredreasonable
  Cheam not

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Examples (cont.)

• Xatsull v. BC (2008 EAB) Blakes Bulletin
• FN said it would only meet proponent
• Would delay unless money provided
• Disrespect of values but wanted JV
• ?Crown consultation imperfect but adequate

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Best practices

• FN not yet held to same standard as Crown /
  industry, but close
• Courts believe consultation, not litigation, will
  bring reconciliation
• ?Raising the bar for everyone, including FN

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Best practices (cont.)

• FN Participate in process even if imperfect
• Provide information, subject to reasonable
  safeguards
• Facilitate access to others researchers,
  experts, elders

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Best practices (cont.)

• Do not delay project for its own sake
• Rationalize time and money requests

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Best practices (cont.)

• Crown / industry keep up with changing times
• Design (and redesign) processes to best current
  standard
• Involve FN from outset, even on design

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Best practices (cont.)

• Respect the others interests and expect the same
• Pick a topic that all can endorse e.g. Sliammon
  / Plutonic
• Share real benefits and participate together
  joint venture, contract preference

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Conclusion

• Dialogue to understanding to reconciliation
• Some litigation is inevitable
• But courts dislike making final decisions
• Conduct based in best current practices brings
  agreements

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• Roy Millen
• Partner
• Blake, Cassels Graydon LLP
• Vancouver, BC
• Tel [phone]
• email roy.millen_at_blakes.com