November 2010

First Nations

Canada’s Aboriginal groups: rights, treaties, land claims and consultation

By Dawn Curtis

Aboriginal engagement

Aboriginal engagement in Nahanni Butte, NWT, on the Canadian Zinc Prairie Creek Mine project  | Photo courtesy of Canadian Zinc Corporation

Much of Canada’s mineral resources are located in areas covered by historic treaties, modern treaties (land claims agreements), self-government agreements, or the existing and asserted Aboriginal rights of one or more Aboriginal groups. When starting a project in a particular area, it is important to get to know which groups you need to engage and what is expected of you to move through the permitting, licensing and approval processes.

The Canadian Constitution recognizes three Aboriginal peoples: Indians, Métis and Inuit. Although they are often referred to collectively as “Aboriginal peoples,” these are three distinct peoples that are further divided into many different groups and communities with unique histories, languages and cultures.

“First Nation,” a term that came into common usage in the 1970s as an alternative for some uses of the word “Indian,” is now commonly used; however, it has no legal definition. The term “First Nations peoples” refers to Status and Non-Status Indians in Canada. Some use First Nation to replace the word “band” in the name of their community or reserve.

Currently, there are 615 First Nation communities in Canada, which represent more than 50 collective groups, and 50 Indian languages.

“Inuit” are the Aboriginal people of circumpolar Canada. About 45,000 Inuit live in 53 communities in Nunatsiavut (Labrador), Nunavik (Quebec), Nunavut and the Inuvialuit Settlement Region of the Northwest Territories. Each of these four Inuit groups has a settled land claim.

“Métis” refers to persons of Aboriginal and non-Aboriginal ancestry who identify themselves as Métis and belong to or have ancestral ties to a Métis group distinct from other Aboriginal peoples. Métis groups have unique histories and cultures based on their First Nation and European roots.

Land, resource and self-government agreements

In much of Canada, there are historic treaties between First Nations peoples and the Government of Canada — the Crown — that date back to the 1700s, and as recently as 1921. In parts of Canada where historic treaties were not entered into, or where there was disagreement over the meaning and implementation of the original treaties, the Crown established the Comprehensive Land Claims process to negotiate rights of land title, use and occupancy. This “modern treaty” process began in the 1980s, and the agreements are commonly referred to as “land claims.”

For example, in the Northwest Territories, Canada agreed to use the comprehensive claim process to negotiate a modern treaty with the Dene and Métis because of disagreement over the meaning and implementation of original Treaties 8 and 11. More recently, self-government agreements are being negotiated along with land matters — referred to as land, resource and self-government processes.

Sometimes an agreement may include more than one Aboriginal group, as in the case of the Sahtu Dene and Métis Comprehensive Land Claim Agreement that includes both Sahtu Dene and Métis beneficiaries. Other agreements may involve only one group — for example, the Inuvialuit Settlement Agreement for the Inuvialuit.

It is important for businesses to recognize the distinction between Canada’s Aboriginal peoples, and they must also understand how these distinctions may impact their business. Companies need to get to know the regional or local history and context in their project area. When planning and conducting mining exploration and development initiatives, a company must engage government and Aboriginal representatives early to learn about the specific rights and processes that apply.

Modern land claims agreements are constitutionally protected, having force of law under Section 35 of the Canada Charter of Rights and Freedoms, and include detailed provisions to guide consultation with Aboriginal people on decisions that could affect them. In addition, individual Aboriginal groups and organizations may have their own protocols and exploration and development requirements for industry. And even if a group does not yet have a signed land, resource and self-government agreement, or “modern treaty,” they may have negotiated interim measures agreements for the area under negotiation.

The existing rights of groups without a modern treaty, or who only have a historic treaty, are also constitutionally protected. In this case, the Crown’s duty to consult has been defined in common law through decisions of courts, notably Supreme Court of Canada decisions Haida, Taku and Mikkisew.

What does this mean for an exploration or development company?

Any project or activity — large or small — requiring a federal approval, license or permit, and/or which could adversely impact established or potential Aboriginal and treaty rights, could trigger the Crown’s legal duty to consult.

The courts have stated that third parties, such as developers, do not have a Section 35-based legal duty to consult with Aboriginal people. The Crown, while it may delegate procedural aspects of consultation to third parties, has sole legal responsibility for any consequences that flow from its actions and interactions with third parties that may adversely affect Aboriginal and treaty rights.

However, normal due diligence and similar business practices that are carried out by a company in the course of its interactions, relations and dealings with Aboriginal groups, such as engagement and consultation, may be taken into account when the Crown is assessing consultation obligations related to permits and licenses.

For example, a mining exploration company may meet with an Aboriginal group to explain a proposed drilling exploration project, answer any questions and possibly address their concerns. If the duty to consult arises in this particular case (i.e. the Crown decision that would allow the permitting of the proposed project), the Crown might take the company’s consultation efforts and actions into account, as well as consultation that the Crown may have conducted, when assessing its consultation obligations.

Experience has shown that forging strong, respectful relationships with Aboriginal groups early in the process is a good business practice. Getting accurate information is an important first step that allows companies to engage early and build relationships. It is also a good business practice to record and document all activities, meetings, discussions, issues, commitments and outcomes related to consultation.

All parties benefit from proactive consultation and face-to-face engagement. In short, building relationships and sharing information with potentially affected Aboriginal groups from the very beginning of your project planning makes good business sense.

Dawn Curtis
Dawn Curtis is a senior communications officer with Indian and Northern Affairs Canada (INAC) NT Region, and lives in Yellowknife, Northwest Territories. Her work involves supporting INAC NT Region’s Aboriginal and Territorial Relations Directorate.

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