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Duty to consult is rooted in Aboriginal Canadians' Section 35 treaty rights to have unencumbered access to the
land they need to practice a meaningful way of life. Whenever an industry proponent initiates a project which
has the potential to infringe on those rights, they and the crown have a responsibility to meaningfully engage
the affected Indigenous nations, complete comprehensive land-use studies and take exhaustive measures to offset,
reduce or eliminate those impacts.
Throughout the Duty to Consult process, Aboriginal nations must feel they have received sufficient information
about the proposed project and the impacts to their Section 35 rights. They must also feel proponents and the
crown have fairly heard and addressed their concerns prior to project approval and commencement. With much at
stake for all parties – particularly for Indigenous stakeholders' way of life – it is critical for all parties
to approach Duty to Consult with an informed, equitable and meaningful outcome in mind.
There are three parties involved in the Indigenous consultation process - Indigenous Nations, Government Regulators and Natural Resource Developers. MNP has experience representing all three perspectives.
For Indigenous NationsAboriginal and treaty rights are constitutionally protected. That means Aboriginal consultation is triggered when a natural resource development project is proposed within your Traditional Territory and it has the potential to adversely affect your Section 35 rights. The Crown must consult your Nation on the potential adverse impacts from that project.
For Natural Resource DevelopersGood Indigenous consultation manages legal risk. Although the duty of Indigenous consultation rests with the Crown, the Crown may delegate Indigenous consultation activities to your company. Knowing how to develop and implement a successful Indigenous consultation program is key to managing legal risk to your proposed project.
For Regulatory AuthoritiesGood Indigenous consultation upholds the honour of the Crown. Ensuring that meaningful Indigenous consultation occurs in the context of regulatory decisions can both improve Crown decision making and manage risk that may result from a lack of Indigenous consultation.
Having comprehensive information as to how, where and when Section 35 rights can or cannot be practiced is critical for the protection of those rights.
We are taking a stand …against “traditional”.
MNP is concerned about attempts to define and separate “traditional uses” of land and water by Aboriginal peoples from the exercise of their treaty and Aboriginal rights. We hold that Section 35 of Canada’s Constitution does not make this distinction, but rather protects Aboriginal peoples’ activities and places including and not limited to, hunting, fishing, trapping, gathering, sacred and ceremonial activities, transfer sites, feasting, teaching and storied places.
We strongly maintain that the distinction between treaty rights and traditional uses is artificial: the right to hunt, fish and trap remains inextricably bound to the ability to be, live and learn on the land.
Further we challenge static notions of the term “traditional” which imply such activities are part of a bygone past. We maintain, and can demonstrate, treaty rights and Aboriginal rights are contemporary activities that, while rooted in historic practices and worldviews, are nonetheless part of vibrant and continuous Indigenous people’s cultures and ways of life.
As such, we are renaming the studies we conduct from Traditional Land Use Studies (TLUS) to Aboriginal Rights Studies (ARS) and Aboriginal and Treaty Rights Studies (ATRS) depending on geographic location and context. If you have any questions about this change in name, do not hesitate to contact MNP.
Aboriginal consultation is insufficient without the completion of a project-specific Aboriginal Rights Study.
When used within an environmental assessment, Aboriginal Rights Studies play a critical role in identifying adverse impacts to Aboriginal and treaty rights. MNP will advise proponents to use this information to ensure regulatory requirements are satisfied.
MNP strives to find tailor-made solutions for collecting and documenting Aboriginal Rights Study information. MNP will ensure confidentiality measures to protect representation of Aboriginal Rights Study information, supported through enhanced data management security.
Every First Nation in Canada must understand how much unoccupied Crown land remains within its traditional territory. Conversely, every project proponent should understand the impact of their project footprint on the amount of unoccupied Crown land available for First Nations to exercise treaty rights.
All public lands in Canada are owned by either the Provincial or Federal Crown.
In the provinces, the Provincial Crown manages public land and decides who can cut trees, build pipelines or transmission lines, drill for oil or gas and when and where people can enjoy recreational activities. Every time a Provincial Crown considers an approval for a well pad, right of way for a pipeline or even a new wildlife area, the government must consider how that approval will negatively impact treaty and Aboriginal rights.
Did you know the majority of the provinces are covered by historic treaties? The boundaries of these treaties fit together like puzzle pieces. For example, every square inch of Alberta is covered by a treaty agreement which outlines existing treaty rights for those First Nations who signed them.
The text of each historic treaty varies slightly, but all outline promises that First Nation signatories may continue their way of life into the future – including the ability to hunt, trap and fish on lands that were not “taken up” by the Crown within the boundaries of the treaty. The Natural Resources Transfer Agreement expanded the geographic scope of treaty rights in Alberta, Saskatchewan and Manitoba to all unoccupied Crown land and to “other lands to which [First Nations] have a right of access.” First Nations gain a right of access by obtaining permission from the occupant or owner to enter on and use the land.
For the exercise of treaty and Aboriginal rights, this means there are only two types of land to worry about: unoccupied Crown land and land that ‘belongs’ to someone else. Land that belongs to someone else includes all privately-owned land and any public land for which a Provincial or Federal Crown has conveyed an interest.
For example, every time the Government of Alberta gives out a Public Lands Act disposition, creates a road under the Public Highways Development Act or creates a new park under the Provincial Parks Act, land that was once unoccupied becomes occupied. Occupied Crown land, just like privately owned land, is land where treaty rights can no longer be exercised without permission. When the exercise of a right depends on the permission of another, it is no longer a right.
Call us — MNP can help meaningfully inform consultation.
Indigenous consultation is confusing. MNP can help your organization understand where Aboriginal rights came from, who holds Aboriginal rights, and how best to execute Indigenous consultation.
Whether you require a session that focuses on regulatory matters, historical influences or risk management, MNP can deliver a tailored session that meets your company’s specific needs.
Learn more about MNP’s Duty to Consult Services for Indigenous Nations.
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Our in-depth suite of business services combines industry expertise, market knowledge and professional insight with cultural awareness to identify opportunities to take you and your community, organization or business to the next level. Here's a glimpse at some of the service areas we provide to help you prosper.
Throughout our long history and partnership, we have gained the experience and knowledge to better assist Indigenous
communities in a variety of key areas, some of which include:
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