The Canadian Institute's 8th Aboriginal Law, Consultation, & Accommodation

Registration Opens and Refreshments Served

Opening Remarks from Chair

Defining Aboriginal Title – What the Implications of the Tsilhqot’in Decision are for Canadian Aboriginal Communities and Proponents

Engage with leading lawyers on the varying perspectives on what the Tsilhqot’in decision will mean for aboriginal land rights in Canada.

• Explore how the SCC decision is likely to apply outside of British Columbia
• Hear from counsel who acted for intervener first nations on the case
• Understand whether this decision will be indicative of the line of reasoning to come from the SCC in future cases
• Ensure that you have a clear understanding of what is required to assert aboriginal land rights and how that differs from aboriginal title to and, as well as what constitutes successful ceding of aboriginal lands to third parties in the modern context

Critical Updates in Legislation and Case-Law

Tsilhqot’in may have grabbed headlines, however there have been other developments and decisions that will impact how relationships between proponents and aboriginal communities will function.

• The federal court of appeal upheld the Daniels decision ensuring that Métis rights are considered along with other aboriginal rights, though the decision has been appealed, it is essential to know what this means for you going forward
• 2 years on – how the legislative response to Wahgoshig First Nation v. Ontario, the entrenchment of the duty to consult into the Ontario Mining Act, has impacted consultation in Ontario
• The British Columbia Supreme Court recently decided on provincial liability in Moulton Contracting – learn whether this will have resonance in other jurisdictions
  

Networking Refreshment Break

Defining the Duty to Consult

The duty to consult is entrenched in Canadian law as evidenced by the Haida Nation decision of 2004. Since then the duty to consult has evolved, and aboriginal communities, proponents, and other stakeholders need to ensure that they clearly understand what it entails.

• Understanding the key issues:
  • When the duty to consult arises
  • What constitutes effective discharge of the crown’s duty to consult
  • Attempting to define the line between procedural and substantive aspects of the duty to consult to understand what can and what cannot be delegated by the crown
  • Understanding how far the duty to consult can be delegated, and when delegation is effective
  • Is there a duty to consult when interest in a project is sold by a proponent to a third party?
• Municipalities and the duty to consult – when it arises, when it should arise, and what municipalities can do to ensure that the right community needs are addressed when developments or projects impact aboriginal rights or land
  

Networking Luncheon for Speakers and Delegates

Conducting an Effective Consultation

Learn best practices employed by successful proponents and aboriginal communities to ensure that you are conducting meaningful and effective consultations, with a view to building bridges with communities and meeting your consultation obligations.

• Developing a fulsome consultation strategy from the outset
• Ensuring that you consult all stakeholders to allow for effective dialogue
• Understanding community values and addressing concerns effectively throughout the consultation and accommodation process
• Engaging with the government early and often to demonstrate your commitment to consultation and accommodation

Networking Refreshment Break

Engagement with Aboriginal Communities – Beyond the Legal Relationship

The legal relationship between Aboriginal communities and the federal and provincial governments operates in a broader context. It is in this broader context where real engagement can occur and meaningful change can be affected. Whether involved in litigation, mediation, land claims, or justice issues, a shift in paradigm may be an essential component of moving towards reconciliation.

The following examples will be discussed:

• Ontario’s experience resolving complex, multi-party actions
• Ontario’s recent involvement with justice initiatives such as Aboriginal inclusion on jury roles
• Resolving land and treaty claims
• Building social capital on major projects
  

Building Strong Relationships – Laying the Foundation to Ensure Mutually Beneficial Outcomes

Strong relationships are built on understanding, trust, and responsiveness. Ensure that all parties come to the table with the discourse of partnership in mind to develop successful projects and long-standing relationships. Learn from tried and tested examples of what has worked in Ontario and nationally.

• Understanding the needs and goals of aboriginal communities and stakeholders
• Clearly communicating goals and objectives, and how to work together to best achieve community outcomes
• Using open and clear communication to come to mutually beneficial terms of agreement
• Fostering an exchange of ideas to educate all parties on stakeholder objectives
• Defining partnerships
  • Aboriginal perspectives on partnership with proponents
  • Proponent perspectives on project development
  • Finding common ground and agreement to move relationships and projects forward
    

Closing Remarks from Co-ChairsConference Adjourns

Refreshments Served

Opening Remarks from Chair

Negotiations – Coming to Terms After You Have Built a Strong Relationship

Negotiating large projects with multiple stakeholders can be a complex exercise at the best of times. Having built a solid platform of understanding and communication, use proven methods to address common challenges in negotiations on projects involving aboriginal communities and proponents.

• Project proponents need to make sure that they are negotiating with individuals who have authority to speak for aboriginal communities, this will mean working outside the paradigm of business hierarchies and conducting research with community members to ensure that all parties who should have a say, do have a say
• Being certain to stay live to and address concerns brought by stakeholders in a meaningful way to facilitate smooth negotiation
• Managing expectations
  • Communicating the unique nature of project partnerships to boards and corporate stakeholders
  • Keep dialogue flowing with aboriginal stakeholders to set and achieve realistic expectations
• Staying live to the non-monetary outcomes and community benefits essential to strong community partnerships
  

Networking Refreshment Break

Beyond Impact Benefit Agreements – Using the Appropriate Language to Frame Relationships and Expected Outcomes

Impact Benefit Agreements are in wide-use, however, with the shift in discourse towards more inclusive and diverse agreements, it is essential for all parties to stay ahead of the trend and understand the new language of agreements.

• Walking through examples of:
  • Friendship agreements
  • Hosting agreements
  • Vibrancy agreements
• The importance of language in agreements
• Showing commitment to community building by being continuously engaged in long-term planning and achieving exceptional outcomes:
  • Planning for long-term partnership with aboriginal communities
  • Encouraging career development and business development
  • Working backwards from a desired objective to put an achievement plan in place today
    

Networking Luncheon for Speakers and Delegates

Business Structure Examples that Have Yielded Successful Results in Aboriginal-Proponent Partnerships

Walk through examples of business structures and arrangements that have been used to create thriving partnerships between proponents and aboriginal stakeholders.

• The history and evolution of what a successful agreement between proponents and aboriginal communities looks like
• Current structures, examples and considerations:
  • Joint ventures
  • Equity sharing
  • Equity partnerships
  • Resource revenue sharing
  • Community benefit agreements
    

Networking Refreshment Break

Case Studies – Putting All the Pieces Together for Project Success and Mutual Benefit

An in-depth case study approach led by individuals who have worked on some of the most recent and successful aboriginal-proponent project partnerships in Ontario and nationally, followed by a question and answer session. Session leaders will walk delegates through entire projects including:

• Building great relationships first
• Coming up with and executing an effective consultation plan
• Liaising with stakeholders to ensure concerns are effectively addressed
• Project negotiation – understanding live issues and dealing with challenges
• Long-term community development solutions
• Agreement drafting and considerations
• The structure of agreements
• Post-project execution plans
  

Closing Remarks from Co-Chairs Conference Concludes