6 1763

A discussion about Canadian environmental regulations would not be complete without some mention of Indigenous contributions.  But the challenge of where to start and what to include can be daunting.  It not within the scope of this project to be complete.  But perhaps it is a beginning.  Many informative books have been written on the topic that are worthy of followup reading.

Where to start is a challenging question.  Prior to contact, there were many nations, each with their own regulations as we would describe them today.  But perhaps it is better left to the voices of the individual nations to express their own laws and regulations.  So perhaps a good starting point to understanding current environmental regulations with respect to environmental matters is with the Kings Proclamation of 1763

1763

In 1763, the Sevens Years War between England and France came to an end.    With the end of the war, England and King George III took ownership of North America.  George issued the Royal Proclamation to cover North America.  While it applied to all of North America to start with, when the United States of America declared independence in 1776, it ceased to be effective there.

The Royal Proclamation had some very pertinent information with respect to Indigenous matters  Scholars may argue about whether it still applies, but it is a useful beginning. The Royal Proclamation said Aboriginal title has existed and continues to exist to the land.  The Proclamation also stated the land would be considered Aboriginal land until ceded by treaty.   By the Proclamation, only the Crown could buy land from Indigenous peoples, it could not be sold to settlers directly.

The Royal Declaration was written by the King and court with a settlers view. No input from Indigenous peoples is noted.  You can read more on the declaration here. (UBC, n.d.)

Constitution Act 1867, 1982

Perhaps the next step is to look at the Constitution Act.  In 1867, Canada became a country by a law of the House of Commons of the United Kingdom (UK).  The Act was called the British North America Act. It remained a UK law until 1982 when it was repatriated, became a Canadian law and renamed the Constitution Act, 1867.  The Constitution Act 1982 added to the original and now are often considered as one act.

In the original Constitution Act, 1967 authorities were divided between the federal government and provincial governments.  In this act federal responsibility was clear for what today we might call Indigenous issues.

In 1982 the Charter of Rights was added to the Constitution Act (Foot, Yarhi, McIntosh, 2020).  Also an amending formula for the constitution was added.  To change the constitution, any change would need the support of 7 of the 10 provinces and must include at least 50% of the population.

However, we are interested in Section 25 and Section 35 of the Act, which considers Indigenous peoples.  The section is explicit in defining aboriginal peoples as the Inuit, First Nations (said in context of the use of the name Indian in the Acts), and Métis peoples. From the constitution, there are important sections.  The following two sections are quoted from the Charter:

Section 25

Aboriginal rights and freedoms not affected by Charter

25 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

• (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

• (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired

Section 35

“Rights of the Aboriginal Peoples of Canada

Recognition of existing aboriginal and treaty rights

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition of aboriginal peoples of Canada

(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.

Land claims agreements

(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.

Aboriginal and treaty rights are guaranteed equally to both sexes”

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Duty to Consult

Of great importance in environmental assessments is the Duty to Consult.  The duty is to consult with Indigenous peoples whenever their treaty rights might be impacted.  The exact definition of the duty has evolved over time, and through court cases.  The Duty to Consult applies to all government levels who might approve of a project that could impact Indigenous rights.

The duty was first fully articulated in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 SCR 511  (Gonzalez, 2020).  Where a right exists or a credible claim exists, the constitution requires that there is a duty to engage in fair dealing.  The case also established there was a sliding scale of engagement in consultation.

The Honour of the Crown was considered with the duty.  No exact legal definition exists, but it means behaving in good faith (Gonzalez, 2020).  It does not mean that parties agree, but that there is a good faith meaningful discussion.

 In Clyde River (Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40 (CanLII), [2017] 1 SCR 1069), the supreme court also established that the the Duty to Consult belonged to the government alone.  The government could delegate some tasks to proponents, but the duty belonged ultimately to the Crown.  Interestingly Clyde River established that the duty to consult was over the rights held by Indigenous peoples, not the environmental issue itself.

In a case commonly called Trans-Mountain, the case of Tsleil-Waututh Nation v. Canada (Attorney General), the federal appeal court ruled that the National Energy Board (NEB) approval to proceed with the Trans-Mountain extension was rescinded due to the lack of completeness of the consultation.  The court ruled that while the consultation happened, it was essentially seen as note taking by the government.  The court ruled that the consultation did not engage in meaningful consultation.  The government of Canada remedies this by conducting additional consultation.  The process resulted in the Trans-Mountain approval being renewed.  The renewed approval was challenged again, however, the consultation this time was certified by the court as being meaningful.

UNDRIP

UNDRIP is the acronym for the United Nations Declaration on the Rights of Indigenous Peoples.  The declaration was passed by the United Nations in 2007.  Canada and several other countries did not sign the original declaration, however, Canada has reversed its decision and become a signatory.

Canada has passed the United Nations Declaration on the Rights of Indigenous Peoples Act to begin the formal implementation of the declaration.  British Columbia has a similar legislation.  Canada is developing a program to ensure legislation is compatible with Canadian legislation.

With respect to the duty to consul the following quote is perhaps one of the most interesting of UNDRIP :

Article 19
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Section Conclusion

Indigenous rights and environmental assessments are closely linked but the linkage is still being studied and debated.    There are many views and discussions to be had.  This chapter is really just the a brief introduction.

Learning Questions

• Read the UNDRIP. Write out your own definition of what it means to you.
• A second reading that is recommended are the Calls to Action from the Truth and Reconciliation Commission.

References

Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40 (CanLII), [2017] 1 SCR 1069

Foot R., Yarhi E., McIntosh A. (2020). The Constitution Acts, 1867 to 1982. The Canadian Encyclopedia retrieved from https://www.thecanadianencyclopedia.ca/en/article/canadian-charter-of-rights-and-freedoms

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 SCR 511

Gonzalez A. (2020). The Evolution of the Duty to Consult. Western Journal of Legal Studies 1, (CanLII), Retrieved from <https://canlii.ca/t/ssb5>

The Constitution Acts, 1867 to 1982

Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 (CanLII), [2019] 2 FCR 3

United Nations. (2007). United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

University of British Columbia. (n.d).  Royal Declaration, 1763. retrieved from https://indigenousfoundations.arts.ubc.ca/royal_proclamation_1763/#:~:text=The%20Royal%20Proclamation%20is%20a,won%20the%20Seven%20Years%20War.