Quantum leap forward required

Gull Bay Chief Wilfred King said the consultation process has not worked for his community during the Nov. 5-7 Robinson Superior Regional Economic Development Summit.
“We produced a consultation document that was well researched and took into consideration various case law across Canada, Supreme Court of Canada decisions and also various different consultation protocols that have been developed by the provinces,” King said. “That was submitted to both the federal and provincial governments and we feel the Ministry of Northern Development and Mines has not lived up to their obligations to enforce that consultation protocol.”
King said First Nations communities need to have comprehensive agreements with industry.
“The time of a few meaningless jobs are over,” King said. “Some companies are very proactive and have really engaged First Nation communities, and I think that is the next step. We have to make the quantum leap forward and look at very comprehensive agreements that look at not only employment but also resource revenue sharing and so forth.”
King said there are currently some resource exploration companies working in his community’s traditional territory.
“We’ve also let them know that the First Nation is not adverse to development, but we’d like to be consulted, accommodated and our consent is necessary,” King said. “They have been willing to engage us; they have been willing to look at how can we develop the relationship as we move forward.”
Kim Alexander Fullerton, owner of Kim Alexander Fullerton Barrister and Solicitor Professional Corporation, said the “duty to consult is triggered very easily” during his Nov. 7 presentation on Capacity Development – Shotgun Wedding: Aboriginal consultation and accommodation in the age of forced partnerships.
“Essentially, whenever the government is doing something that might affect your treaty rights, you have a duty to be consulted about that,” Fullerton said, noting the 2005 Mikisew Cree decision by the Supreme Court of Canada. “Whenever the crown is taking up lands, doing something that is going to possibly impact on your rights to hunt, trap and fish and other treaty rights that you have, you have a duty to be consulted.”
Fullerton said the Supreme Court has said that the crown can delegate some matters of consultation to private parties such as industry stakeholders.
“But they have also said, very clearly, the ultimate legal responsibility for consultation and accommodation rests with the crown,” Fullerton said. “The honour of the crown cannot be delegated. So the party that has the duty to consult with the First Nations in this area is the crown.”
Fullerton said some aspects of the consultation can be passed down to proponents such as the mining and forest companies.
“But, in reality, who really does the consultation,” Fullerton said. “You don’t see Canada coming up and doing a lot of consultation and you don’t see the province coming up and doing a lot of consultation. What you do see is a lot of companies coming up and doing consultation.”
Fullerton said the courts have said the issue of appropriate funding is essential to a fair and balanced consultation process to ensure a level playing field.
“The courts have said if you’ve got a multi-billion dollar corporation coming into your territory to consult with you and you don’t have any funding and you have to negotiate with them and talk to them, that is not right,” Fullerton said. “There has to be appropriate funding available for the First Nation in order to participate in the consultation.”
Fullerton expressed concerns about the province of Ontario’s New Relationship Fund, which was developed in 2009 to help with consultation and capacity building.
The fund provides core consultation capacity funding, to help First Nations and Métis communities consult and engage with governments and the private sector on land and resource issues; and enhanced capacity building funding, to fund projects that build the capacity of First Nations, Métis communities and Aboriginal organizations to work with government and participate in economic development activities.
“It’s a small amount of money distributed throughout all the First Nations in Ontario,” Fullerton said. “It basically doesn’t begin to cover the true cost of consultation but does allow First Nations to perhaps at least contribute towards the salary of one person to work on consultation.”
The core consultation capacity funding provides up to $100,000 per represented community for the first year and up to $80,000 for the second year.
Fullerton said most private corporations wishing to do business on a community’s traditional territory will provide some funding to consult and may provide funding to negotiate an impact benefit agreement.
“You will find that often the most difficult part of the negotiations to be around the budget for the First Nation to negotiate the IBA with the company,” Fullerton said. “They understand that they are (funding) the other side, so they are giving you the weapons to fight them with, so they are not overly anxious to give you too many weapons because you might be too successful.”
“When you are negotiating with a company, make sure you get good money up front to negotiate the protocol and the agreements with them because otherwise you are not having that level playing field.”
Fullerton stressed that he only works for First Nation clients, noting he has worked for some Robinson Superior and Wabun communities. He has been legal counsel on 15 settled land claims, including both the largest and second largest Specific Claim settlements for a single First Nation in the history of claims in Canada.