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The Constitution Act, 1982 outlines and commits to protection for fundamental rights for all Canadians; it defines the principles that Canadians agree to uphold. Since 1982, Canada agreed to protect a special set of rights for a distinct group of Canadians: ““The existing aboriginal and treaty rights of the aboriginal peoples of Canada…” …”
The Duty to Consult is triggered when Crown conduct, such as an approval of a natural resource development project, has the potential to negatively affect Indigenous and treaty rights (also known as “Section 35 rights”).
The Duty to Consult includes an obligation of the Crown to address impacts or concerns that are identified during the consultation process. In other words, once Indigenous peoples have expressed an issue or concern about an impact to their existing rights, the Crown must take reasonable steps to address those issues.
There are usually three parties involved in a Duty to Consult process: the industry proponent proposing a project; a public regulatory authority considering a project approval and; Indigenous Nation(s) with Section 35 rights potentially affected by the project. Project proponents are typically delegated procedural aspects of the Duty to Consult from the Crown. Nearly every square inch of Canada is subject to Section 35 rights, oftentimes with multiple Indigenous Nations having overlapping Section 35 rights in the same area. Virtually every natural resource development project in Canada can involve the Duty to Consult, often requiring project proponents to consult with multiple Indigenous Nations.
For Indigenous NationsIndigenous and treaty rights are constitutionally protected. That means Indigenous 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 procedural aspects of consultation 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.
MNP has been using terms such as Indigenous Rights Studies (ARS) or Indigenous and Treaty Rights Studies (ATRS) to replace the use of Traditional Land Use Studies (TLUS).
We have adopted this terminology to illustrate that “traditional uses” of land and water by Indigenous peoples are not separate from the exercise of their treaty and Indigenous rights. Section 35 of Canada’s Constitution does not make this distinction, but rather protects Indigenous peoples’ activities and places including and not limited to, hunting, fishing, trapping, gathering, sacred and ceremonial activities, transfer sites, feasting, teaching and storied places.
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 Indigenous 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.
When used within an environmental assessment, Indigenous Rights Studies play a critical role in identifying adverse impacts to Indigenous and treaty rights.
MNP strives to find tailor-made solutions for collecting and documenting Indigenous Rights Study information. MNP will ensure confidentiality measures to protect representation of Indigenous 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 Indigenous 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 Indigenous 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.
The Duty to Consult is confusing. MNP can help your organization understand where Indigenous rights came from, who holds Indigenous 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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