Aboriginal Law, Consultation & Accommodation

• How have recent case law developments shed light on the basic questions, such as:
  • What is the scope of the duty to consult?
  • When is the duty triggered? What is included in “contemplated Crown conduct”?
  • How much of the duty can be delegated a) to municipalities? b) to proponents?
  • How much of what proponents do, goes towards the discharge of the Crown’s duty?
• How are Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council and Adams Lake Indian Band v. British Columbia being applied by lower courts?
• Clarifying the role of regulatory bodies with respect to the duty to consult
• Looking at how the B.C. Court of Appeal decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines) has further shaped the Crown’s duty to consult with respect to past impacts and cumulative effects, and the issue of Crown accommodation
• Understanding how the recent trend towards complex partnership agreements is affecting accommodation by the Crown
  

• How might cases arising across the country, such as R. v. Hirsekorn and R. v. Jones, and other cases dealing with effective control and geographic scope of Métis communities, affect consultations?
• How is the duty to consult with Métis groups currently being applied in Quebec?
• Strategies for ensuring “meaningful consultation” with Métis groups interests in consultations
• Effectively determining whether there are Métis interests at stake in a project-How should an asserted Métis right be evaluated with respect to a territory where a treaty has application?
• What does the future of Métis rights recognition look like in light of recent developments involving Métis adhesion to Treaty and the potential settlement of Métis land claims (Manitoba Métis Federation v. the Province of Manitoba)?
  

Gain critical insight from leading Aboriginal Law counsel, on considerations that should be taken into account at the start of any consultation case, key evidentiary issues that are likely to arise, and how to successfully manage them.

• Determining when it is appropriate to pursue an issue in court
• Utilizing oral and elder history/testimony and other unique evidentiary issues
• Assessing alternatives to judicial review: successfully utilizing declaratory remedies
• Unique considerations for costs orders, such as advanced costs orders, and how to successfully include costs issues in negotiations
  

• What obligation does the Crown have to ensure the appropriate First Nations groups are consulted?
• How to effectively address disagreement with Crown lists outlining groups to be consulted
• Effectively interacting with political entities not recognized by the Indian Act, claiming to represent a certain group
• Case Study: Brantford (City of) v. Montour
• Managing the significant delays, costs and legal issues resulting from parties not being consulted
  

• What obligations do the provinces have to respect treaty rights in the light of Keewatin?
• How to effectively manage differing policy processes of various Crowns, particularly in a multi-jurisdictional context
• Examining requirements of various pieces of Federal legislation, such as the First Nations Land Management Act, and how they intersect with Provincial responsibilities
• Analyzing formal and informal strategies for Provincial and Federal governments to work more harmoniously together
  

Plan Nord, an initiative of the Province of Quebec, anticipates $80-billion in development in Northern Quebec over the next 25 years. While its goal is to develop the area’s natural resources and shape the economic future of the area, including Aboriginal communities, and the province as a whole, it also comes with a whole host of serious issues for the Aboriginal groups being impacted. This session will address hot issues involving treaty rights, consultation and accommodation, and resulting litigation, that could potentially impact you, no matter where you are across Canada.

• What are the specific environmental concerns that are being raised and what accommodation options are there?
• How is the government balancing overlapping rights of First Nations who are signatories to the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, and those who are not but within the territory of Plan Nord?
• Analyzing the possibility of the federal government negotiating the rights of the First Nations whose rights were extinguished in 1977, and possible implications
• Case Study: Getting up to date on issues arising out of litigation between First Nations groups in the province
• How is the duty to consult with Métis groups in Quebec being brought to the forefront by Plan Nord?
  

• How are recent developments in both Aboriginal law and environmental law impacting the duty to consult, and proponents’ projects?
• Analyzing the way courts are applying the definition and scope of “accommodation” with respect to environmental impacts, after West Moberly First Nations v. British Columbia (Chief Inspector of Mines)
• Effectively assembling and presenting Traditional Ecological Knowledge (“TEK”) for the purposes of environmental assessments
• How much weight are regulators currently placing on TEK?
• Case Study: successfully consulting with Aboriginal communities and effectively drafting an Environmental Impact Statement
• Archaeological discoveries on construction projects: minimizing project delays and cost through effective consultations with Aboriginal communities
• What are the legal requirements for developers upon archaeological discoveries, and the practical implications involved?
• Determining what constitutes “consultation” at various stages of an archaeological assessment, required pursuant to the Heritage Act
• Ensuring compliance with the Cemeteries Act
  

Consultation is not a step to be checked off on a proponent’s list of tasks prior to gaining licensing and approvals. Successful proponents recognize the importance of ongoing communication with impacted Aboriginal communities, and maintaining a healthy, open dialogue throughout a project life-cycle, which could last many years. Learn from proven strategies to maintaining open communication, which will ultimately increase the bottom line of all parties involved. Round out the skills and strategies you have learned by participating in an interactive exercise with your fellow delegates!

• Successful strategies for implementing government issued guidelines: setting up protocols, meetings and other procedures
• Looking at implementation of a signed agreement and how it blends with consultation
• Consulting with the communities: fulfilling the band council’s fiduciary duty
• Examining ways to manage expectations of all parties involved, throughout the consultation process