Posted on 2020-07-18 03:10:58

Indigenous laws in Canada For Beginners

Context of Indigenous Laws

Indigenous peoples in Canada (First Nations, Inuit, and Métis) have Indigenous rights (including treaty rights) that may include Indigenous claims to large areas of territory. Such rights must be taken into account when a corporation establishes or funds a natural resource, mining, oil, or immovable property project or any other project involving government permits or approval. The government has a responsibility to consult and, where applicable, accommodate indigenous peoples to prevent or minimise any effect that a planned action can have on the rights and title of the treaty or aborigines. The government will assign some of those responsibilities to industry, and this is always the case in practise. As a result , effective cooperation with indigenous communities in Canada is crucial for effectively pushing forward any new project or transaction and ensuring the continued viability of existing facilities and operations. The right engagement approach (and its diligent implementation) can also represent the difference between success and failure.

In the past few years , the world has changed significantly, with substantial changes in case law and, more recently, government policy.

Aboriginal and Aboriginal Peoples' Rights in the Treaty

Section 35 of the Canadian Constitution Act , 1982 (Section 35) safeguards the Indigenous and treaty rights of indigenous peoples in Canada. Section 35 preserves the residual Aboriginal title to certain territories in Canada , Aboriginal rights to use territories for certain cultural purposes (such as hunting , fishing, or trapping), and privileges imposed by historical and current treaties on Indigenous peoples (Section 35, "Privileges").

Consulting and housekeeping tasks

To reconcile Section 35 Rights with the Crown 's sovereignty, the federal and provincial governments ("Crown") have a constitutional duty to consult indigenous peoples if the Crown contemplates conduct that may adversely affect their rights under Section 35.

Examples of Crown actions which can cause the duty to consult include decisions to grant surface tenure over public property, issuance of new permits or alteration of existing permits (such as environmental or impact assessment certificates), decisions authorising the transfer of permits (such as in the course of an acquisition), and many others.

The threshold to cause the Crown 's obligation to consult is small – it exists when the Crown has (real or constructive) knowledge of the possible nature of Aboriginal rights or title, and contemplates behaviour that may adversely impact those rights or title. The duty remains before the actual proof of rights or title and also with very limited evidence of potential damages.

When activated, the contents of the obligation (i.e. what the Crown needs to do to fulfil it) vary from case to case. Just the notification and exchange of information relevant to the project may be expected at the low end of the spectrum. At the high end of the continuum (where there is a clear case for the presence of Aboriginal rights or titles and the potential for adverse effects is severe), the obligation to consult may include practical steps to mitigate or compensate for adverse effects, referred to as accommodation, and likely include improvements to the project and/or sharing of income from the project.

Networks

The Crown may delegate procedural aspects of consultation to corporations and other advocates, but there is no requirement that consent be obtained on lands where Aboriginal title has not yet been formed by a judicial declaration or treaty. Recent reforms are moving towards regulatory frameworks that offer more weight to consent, and several businesses are now seeking consent for projects and operations involving lands subject to Aboriginal rights and claims for title. Proponents of major construction projects are required in some jurisdictions, particularly in northern Canada, to negotiate an impact benefit arrangement with potentially impacted indigenous peoples under land claims agreements or resource development legislation. Federal and provincial approving authorities are moving towards giving greater weight to consent (but stopping short of requiring or near to it) and at least seeking consent where Aboriginal title may be affected.

Regardless of the Crown 's strategy, through engaging with indigenous communities and seeking to answer as many of their issues as possible, advocates have been able to prevent or restrict potential resistance to projects and operations and the negative effects that could arise from lack of contact and interaction with indigenous peoples, such as challenges to a government decision to issue a

1. Latest Entwicklungen

(A) United Nations Statement on Indigenous Peoples ' Rights

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) outlines the rights of indigenous peoples around the world and offers guidelines on cooperative relations with indigenous peoples based on the values of equality, cooperation, good faith and mutual respect.

An essential aspect of UNDRIP is that of free, prior and informed consent (FPIC), which includes, inter alia, that the government consult and cooperate in good faith with the intention of obtaining the free, prior and informed consent of indigenous peoples before adopting and implementing any legislative or administrative measures that may affect them and before authorising any project affecting the indigenous peoples (In who can i contact for free legal advice circumstances of serious impact such as relocation or storage or disposal of hazardous material, it may be necessary to actually receive FPIC)

The federal government has announced its full support of UNDRIP and several Canadian provinces have done the same.

Bill C-262 (currently before the Senate) will allow the federal government to take steps to ensure that Canada 's laws are in line with UNDRIP, and to establish and enforce a national action plan to achieve UNDRIP 's objectives. It is not yet known the precise criteria of those steps.

(B) Committee on Truth and Reconciliation

In 2014, Canada's Truth and Reconciliation Commission (TRC) recommended 94 calls for action to resolve the legacy of residential schools and promote the National reconciliation process. Such guidelines include requirements that industry use UNDRIP as a reconciliation mechanism and pursue FPIC, and that the Crown accept UNDRIP as a reconciliation mechanism and support the process of trying to obtain FPIC.

In 2017, the federal government released its 10 Principles Upholding the Relationship with Indigenous Peoples of the Government of Canada, which it notes will be used to direct the government in its analysis of legislation, policies , and practises. The ten concepts are to:

The Government of Canada acknowledges that all relations with aboriginal peoples must be focused on respect and implementation of their right to self-determination, including the inherent right to self-governance.

The Canadian Government acknowledges that reconciliation is a central aim of Section 35 of the 1982 Constitution Act.

The Government of Canada agrees that the Crown's honour governs the Crown 's actions in all its relations with aboriginal peoples.

The Government of Canada recognises that Aboriginal self-government is part of Canada 's developing structure of mutual federalism and separate legislative orders.

The Government of Canada agrees that treaties, agreements, and other collaborative arrangements between aboriginal peoples and the Crown are acts of reconciliation founded on mutual acknowledgment and reverence, and are meant to be.

The Government of Canada acknowledges that respectful interaction with indigenous peoples seeks to ensure their free, prior, and informed consent when Canada intends to take measures that will impact them and their interests, including their lands, territories and other resources.

The Government of Canada agrees that protecting and upholding rights is necessary, and that any violation of Section 35 rights must by definition meet a high justification requirement that incorporates aboriginal viewpoints and fulfils the fiduciary responsibilities of the Crown.

The Government of Canada recognises that reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous Nations, that fosters a climate of mutual support for economic partnership and resource development.

The Government of Canada acknowledges that reconciliation is an ongoing process that takes place in the sense of changing relationships between Aboriginal and Crown people.

The Government of Canada acknowledges the need for a distinction-based approach to ensure acknowledgment, acknowledgement and enforcement of the special rights, desires and circumstances of the First Nations, the Métis, and the Inuit.

(D) Structure for the identification and application of rights

In 2018, the federal government agreed to reform its legislation , regulations, and organisational procedures to ensure that recognition of Section 35 Rights is the starting point for all federal government intervention. As part of this effort, the government announced the start of a national consultation partnership with indigenous communities and eventually table legislation on a Framework for the Recognition and Application of Rights (' Framework').

The Framework's policy-stated aim is to ensure that Section 35 Rights, including inherent and treaty rights, are acknowledged, protected, and enforced by the federal government and include mechanisms to promote self-determination.