Indigenous Laws in Natural Resource Development 101 Social Acceptability and Indigenous engagement in natural resource projects
Indigenous Way of Life The Indigenous World View
First Nations in Canada There are 633 First Nations across Canada These Nations have been on their lands since time immemorial Many First Nations artifacts have been carbon dated 6000 to 14,000 years old. Meanwhile Canada celebrates150 years of existence. First Nations people have aboriginal rights and title or treaty rights that are recognized and affirmed in s. 35 of the Constitution of Canada.
First Nations Communities
Connection to Land First Nations have always been very connected to the lands and waters in their territories Their spirituality lies on the land and in the waters Mother Earth has provided medicines, foods, water, wildlife and sea resources for First Nations people to sustain themselves. Before the settlers arrived, First Nations had great abundance of food and water they depended on to survive.
Respect Respect for Mother Earth, everything that grows from her, the waters that run through her and all living things is the foundational law of First Nations people Cedar bark, the first fish of the season, a deer taken, prayers are said to give respect to that living thing that is giving its life to you.
Responsibilities First Nations have a great responsibility to take care of and manage the lands and waters within their territories for today and future generations. First Nations through their knowledge (TEK) know that the ecosystems that support their rights must be kept intact or they will not be able to exercise their rights. When First Nations were put on reserves and removed from their territories it was difficult to fulfill these responsibilities. First Nations have continued to try and take care of their lands and waters as other governments have taken over by asserting their laws to the detriment of First Nations and continuation of their rights.
Hi-shuk-ish-tswalk First Nations languages do not have a word for sustainability because our laws said you only took as much as you needed-was not an issue First Nations managed their territories so there was abundance and always had plenty to eat (except in times of drought or other natural disasters). Closest word to sustainability in the Nuu-chah-nulth language is Hi-shuk-ish-tswalk: Everything is connected, everything is one.
Collective Rights Aboriginal and treaty rights belong to the collective people. They are not individual rights. If the First Nation decides they want to do anything that will impact rights either minimally or in total, they must take it to the people to vote on it. Companies may suggest developments in the First Nation territory and if a First Nation is interested in working with the company, they have to bring the development to the people for their approval.
Canadian Laws Impact on First Nations Rights
Consultation and Accommodation The Honour of the Crown
Haida In 1977 in the case of Delgamuukw vs. R, the court ruled that there must be consultation with First Nations when their rights will be affected by development. This case was largely ignored until 2004. In 2004 the Supreme Court of Canada ruled that governments must consult First Nations before they in anyway infringe on their rights through development. It was through the Haida case that consultation became a reality
Key Elements of Court Decision The Crown has a duty to consult which arises out of the honour of the Crown prior to proof of Aboriginal Title and Rights. The scope of the Crown’s duty to consult and accommodate shall depend upon the strength of the asserted right. The Crown’s duty to consult and accommodate Aboriginal interests cannot be delegated .
Key elements… 3 rd parties(companies) do not have a legal duty to C&A aboriginal interests Governments have the task of establishing a general framework for the duty to C&A before Aboriginal title or rights claims have been decided This duty falls to the Crown and the Provincial Crown has the duty as much as the Federal Crown
Duty Arising Court recognized that ‘the duty arises when the Crown has knowledge , real or constructive , of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.’ Crown knows FN has rights by being involved in treaty process, by filing court cases on aboriginal tile, by First Nations doing Land Use Plans over their territory or Traditional Use Studies that are provided to government. First Nations need to say what rights they have and what will happen to those rights if the development goes ahead.
Role of 3 rd parties- company/industry Companies must never act negligently where they owe aboriginal people a duty of care Companies cannot breach contracts with Aboriginal People or deal with them dishonestly or they will be liable Companies cannot be held liable for failing to discharge the Crown’s duty to consult and accommodate
Summary of Process Both First Nations and governments must bring their interests and information to the table in a reciprocal manner; this would include First Nations laws There is a joint contribution to the outcome (e.g. shared commitment of time and resources); The opportunity to be involved and be heard is maximized; The major areas of difference as well as agreement are identified The rights of each party are respected, and the constraints of each party are understood; and Parties try to eliminate or minimize impact on rights.
Results of Consultation Every concern of the First Nation needs to be addressed Often times governments do not address First Nation concerns and end up in court or in confrontation on the land Or governments overrule concerns saying that they can infringe on rights for the public good which also leads to court or confrontation
International Law Free Prior and Informed Consent-The Right to Say No
Aboriginal Rights First Nations in BC have aboriginal title and rights Only Treaties NE corner of BC-Treaty 8 and the Douglas Treaties on Vancouver Island First Nations were not discovered, not beat in war and never surrendered their lands and own the land Canadian government came in and took the land and only set aside reserve lands for First Nations people First Nations say land is ours and we have right of consent to what happens on our lands
Major Projects: Right to Say No There are many big projects being proposed in BC that First Nations are opposed to. Kinder Morgan Pipeline Expansion for heavy, light and synthetic crude oils. Project include tankers to bring oil overseas. Will triple amount of oil coming from Alberta. Approved over First Nation objections Liquid Natural Gas(LNG): Build Plants in key areas of fisheries and pass through many First Nation territories. Approved 2 LNG facilities Site C Dam in NE BC will flood 5500 hectares of land and destroy approximately 328 recorded archaeological sites and includes burial sites- approved over First Nation objection Prosperity Mine: Been turned down three times as it will impact aboriginal rights and habitat of protected animals. Company trying for a fourth time.
Universal Declaration on Indigenous Rights
FPIC Article 32 States shall consult and cooperate in good faith with the IP concerned through their own representative institutions in order to obtain their free, prior and informed consent prior to the approval of any project, affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. Articles 10, 11, 19, 28 and 29 talk about FPIC
Universal Declaration of Indigenous Rights Not binding-is a Declaration not a Convention Political and morally binding Sets a new International norm Canadian courts have acknowledged a very limited right of consent that is not consistent with FPIC Federal liberals before being elected said they would implement FPIC and did not
Right of Consent In BC the issue of the Universal Declaration of indigenous Rights (UNDRIP) and Free, Prior and Informed consent is an election issue. The Recommendations of the Truth and Reconciliation Commission also call on governments to endorse UNDRIP. Strong push from First Nations governments to implement Free, prior and informed consent. If consent, there would not be the court cases and confrontations on the land
RECONCILIATION? Reconciliation between the Crown and First Nations will not be possible if Crown continues to ignore important things like their laws and FPIC Reconciliation between the Crown and First Nations will not be possible if the Crown continues to lower environmental standards that directly negatively impact First Nations rights Reconciliation between the Crown and First Nations will not be possible if courts, protests, and defending of the land is necessary to protect constitutionally protected rights.
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