By Staff Writers
British Columbia’s Liberal government recently released a revised set of consultation guidelines relating to the recognition of aboriginal “interests”, in an all-encompassing policy that applies immediately to “all applicable provincial ministries, agencies and Crown corporations.”
The new consultation guidelines, announced on November 1, incorporates the latest case law in regards to the recognition of aboriginal rights that applies consistently across all government decisions regarding provincial land and resource use.
In terms of recent case law, wherever and whenever First Nations assert their aboriginal rights and title to a given chunk or aspect of their traditional territory or its resources, those asserted rights must, according to the policy, be considered to be “potentially existing aboriginal rights and/or title.”
Notice the subtle difference between aboriginal interests and proven aboriginal rights.
Aboriginal interests are those aspects of First Nations’ traditional territories (title) or its resources (rights) or the uses that it is put to that yet have to be proven in a court of law.
It’s a highly legalistic approach to government policy-making.
The consultation document goes on to trace the evolution of aboriginal rights and title from their recognition and affirmation in the Canadian constitution in 1982, to the 1990 Supreme Court of Canada decision in Sparrow, and the Supreme court’s subsequent decisions in Vanderpeet (1996) and Delgamuukw (1997).
The 1990 Sparrow decision established the aboriginal right to fish and set out a test to prove the existence of future aboriginal rights.
The Vanderpeet decision of 1996 established the nature of aboriginal rights and set out a number of factors that determine whether an aboriginal practice constitutes an aboriginal right.
In the 1997 Delgamuukw decision, the Supreme Court defined the nature of aboriginal title, describing it as a “proprietary interest” and determined that the provincial government has a duty to consult with First Nations when the actions of Crown infringe on aboriginal title.
It was that aspect of the Delgamuukw decision that gave rise to the original consultation guidelines brought in by the New Democrats in 1998.
Since that determination, the duty to consult has expanded significantly in recent case law.
In Taku River Tlingit v. Ringstad on February 1, 2002, the BC Court of Appeal ruled that the duty to consult is not dependant on a court having decided on the existence of aboriginal title as in Delgamuukw (1997).
In the circumstances of Taku River Tlingit case, it was found that the duty on the BC government to consult with the Tlingit even though no court had recognized the existence of Tlingit aboriginal title.
The judge noted that both the province and the federal government were engaged in treaty negotiations with the Tlingit based on the premise that the Tlingit did have aboriginal rights or title to their traditional territory.
In Haida Nation v. BC and Weyerhaeuser, the BC Court of Appeal extended the duty to consult to a private companies.
Now consultation, according to policy, demands that provincial officials assess the “soundness” of aboriginal interests in terms of archaeological studies, local knowledge, archival studies, existing traditional use studies and legal advice.
In the case of legal advice, the offending provincial agency should seek advice from the Ministry of the Attorney General.
The province must now “accommodate” First Nations through negotiated agreements such as treaty-related measures, interim measures, economic measures, partnerships or cooperative agreements with industry, land protection measures or direct award of tenure.
Provincial officials must now consider a number of indicators that may be subsequently proven to be aboriginal rights and/or title.
Some of these indicators include: whether the land has been continuously held in the name of the Crown; indicators of aboriginal interest in the land through consultation or evidence of First Nation use or occupation; land near or adjacent to a reserve or former settlement or village site; land in areas in traditional use or archaeological sites; and, land subject to a specific claim.
In a four step process, provincial officials must now vet “all decisions … that are likely to affect aboriginal interests” giving First Nations a virtual veto power over all government and third party activities on traditional territories.
“If resolution cannot be gained through negotiation, attempted accommodation or other methods, it will be advisable to re-evaluate the project or decision and seek legal advice before proceeding further,” states the policy paper.
And it seems exactly what provincial officials will be doing with most decisions as the policy paper frequently reminds one throughout the text of just that.