Aboriginal & Treaty Rights and Provincial Forestry Management Regimes

By Russell Diabo, Wolf Lake First Nation, Policy Advisor

Haida/Taku Legal Principles
 a) the Crown’s duty of consultation and accommodation is founded not in a fiduciary duty as had been held by the B.C. Court of Appeal, but in the honour of the Crown (¶16, Haida);  (b) the duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it (¶35, Haida);

Haida/Taku Legal Principles
 (c) the scope of the Crown’s duty is proportionate to a preliminary assessment of the strength of the asserted Aboriginal right or title and to the seriousness of the potentially adverse effect upon the right or title (¶39, Haida);  (d) the consultation must be meaningful, in good faith and with a willingness of the Crown to make changes based on the information that emerges during the consultation process (¶29, Taku River Tlingit);  (e) sharp dealing is not permitted, but mere hard bargaining will not offend the right of the Aboriginal group to be consulted (¶42, Haida);

Haida/Taku Principles
 (f) there is no duty to reach agreement and Aboriginal groups do not have a veto power over what can be done with land claimed by them; rather, it is a process of balancing interests, of give and take (¶10 and ¶48, Haida); and  (g) where accommodation is required in making decisions that may adversely affect an asserted Aboriginal right or title, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and other societal interests (¶50, Haida and ¶42, Taku River Tlingit).

Burden of Proof on First Nations
 It is not only Crown governments and third parties that have responsibilities and obligations as a result of these legal principles. These legal principles also place a burden on the First Nations to get organized internally to manage consultation requests and negotiate accommodations from the Crown governments, industry and other third parties operating on a First Nations traditional territory until the Aboriginal Rights, Title or Treaty issues can be resolved.

Post Haida/Taku Burden of Proof
 The Haida decision means that the Crown has to have knowledge of any First Nations’ “asserted” or “potential claims” and concerns about serious “infringements” or “irreparable harm” that is or will be caused by current or future provincially (and federally) authorized activities or plans that affect Aboriginal lands and resources on traditional territory, pending the reconciliation of Aboriginal title and/or Treaty rights with the Crown’s assertion of title, through a treaty, agreement or court determination.

Assessment of Rights vs. Impacts
 First Nations need to set up a consultation tracking system.  Connected to the consultation tracking system should be an information management system that includes a GIS.  First Nations need to develop an internal consultation procedures process and procedures.  First Nations need to develop an external consultation protocol process and procedures.

5. ACTS

Information Management
community knowledge government researchers industry academics interest groups

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reports letters maps databases stories

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decision

 interpretation

MITCHIKANIBIKOK INIK

Logical Framework
TRILATERAL AGREEMENT

PROGRAM INDIGENOUS KNOWLEDGE

PROGRAM SUSTAINABLE DEVELOPMENT OF NATURAL RESOURCES Sub-Program: FORESTRY Projects: Data Compilation Digitization of Ecoforestry Data Cut Plan Map Digitization Synthetic Map Production Buffer Zone Study Sub-Program: WILDLIFE Projects: Aerial Moose Inventory Wildlife Data Compilation Habitat Supply Analysis & Modeling ABL Harvest Study Moose Management Strategy

PROGRAM ECONOMIC/SOCIAL DEVELOPMENT

Projects:

Projects:

Traditional Ecological Knowledge Social Customs Toponymy ABL-FEC Sensitive Area Mapping Measures to Harmonize Elders Field Trip

Regional Socio-Economic Study ABL Socio-Economic Study Legal Framework Study

MITCHIKANIBIKOK INIK

Indigenous Knowledge Program

To document Algonquin ecological & social knowledge for incorporation into the IRMP, & thereby facilitate harmonization of Algonquin & non-Algonquin land-use regimes consistent with the interest of the Algonquins of Barriere Lake.

MITCHIKANIBIKOK INIK

SAS Mapping

LEGEND Sacred Areas Occupancy Burial Sites Moose Yards Spawning Areas Sugar Bush Roots Wood Tobacco Medicinal Plants

Areas of Concern Management Strategy
ABL Areas of Concern (SAS)
Algonquin traditional occupancy and use sites documented during Phase I Strategies & Prescriptions developed by IRMP Technical Team in consultation with ABL for Phase II IRMP planning.

Ministry of Natural Resources, Wildlife and Parks Guidelines & Land Affectation
Quebec Forest Act

FAPAQ & MRN Affectation Zones

ABL Areas of Concern (SAS)

ABL Areas of Concern (TMA 1)
VALUE
Burial Sites Ceremonial Sites

NO. &/OR AREA (ha)
4 1

PRESCRIPTION
No forestry operations within AoC Absolute buffer of 60m No forestry operations within AoC Absolute buffer of 100m Restriction on forest operations in area during gatherings Viewshed analysis as required Absolute buffer of 60m Modified harvest within 400 m; harvest strategies determined through consultations with ABL 5-yr harvest exclusion buffer of 2km around permanent sites 5-yr harvest exclusion buffer of 5km around settlements (5+ cabins) Absolute buffer of 60m

Heritage Sites Occupancy Sites

1

12 permanent 19 tent sites

ABL Areas of Concern (cont.) TMA 1
VALUE
Sacred Areas

NO. &/OR AREA (ha)
5 – 431 ha

PRESCRIPTION
No forestry operations within AoC Absolute buffer of 60m Visibility analysis where required Harvest exclusion Absolute buffer of 60m Measures to Harmonize as required Maintain 560 ha of Algonquin designated collection areas throughout 20-year planning period Maintain 597 ha of Algonquin designated collection areas throughout 20-year planning period Measures to Harmonize for specific sites Maintain 1,434 ha of Algonquin designated collection areas throughout 20-year period

Spring Water Medicinal Plant Collection Root Collection Specialty Woods

6

23 – 556 ha

597 ha 23 – 2,211 ha

Public Land Designations

19

Conclusions
 Provinces developing consultation processes & procedures, First Nations need to do the same.  First Nations need to collect cultural, historical and current use data and natural resource inventory data.  First Nations need to assess how much territory has been taken up and what is left.  The consultation/accommodation processes will be in effect for years, likely decades.

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