Law Times

Law Times • apriL 30, 2018 Page 11 www.lawtimesnews.com Without legislative framework, discussions and negotiations needed Navigating consent with groups a careful process BY MARG. BRUINEMAN For Law Times A fter many years of negotiations, the Sau- geen Ojibway Nation has successfully se- cured an agreement with On- tario Power Generation to en- sure that its consent would be necessary for a proposed nuclear waste site on the Bruce Penin- sula to go ahead. The deal with Ontario Power Generation reversed the years- long trend to exclude the Indige- nous community in the develop- ment of projects and the benefits they reap. While obtaining consent for projects that impact First Na- tions is possible, it is laborious and not always within the means of all First Nations, says a lawyer who negotiated the deal. Randall Kahgee is senior counsel with Pape Salter Teillet LLP who specializes in Aborigi- nal rights law. He is also lead ad- viser and former chief of to the Saugeen Ojibway Nation, whose territory includes the current Bruce Nuclear Generating Sta- tion, along with the proposed waste site. Kahgee was legal counsel for two bands involved in negotiat- ing the agreement, the Chippe- was of Nawash Unceded First Nation and the Chippewas of Saugeen First Nation — whose territory has been affected by the Bruce Nuclear Generating Sta- tion, which began construction in 1970 without the input of the local Indigenous population. He indicated in 2002 that plans for the new waste facility could not proceed without consent of the two First Nations. In 2013, a deal was finally struck for First Nations' consent and involvement in the waste storage plan, and communica- tion about the project continues under the eyes of the federal gov- ernment. In August, federal En- vironment Minister Catherine McKenna asked the OPG how the project might affect area First Nations. Details on the es- timated $2.4-billion project are still being worked out. "That was a long, long fight," Kahgee says. "That commitment finally came after many, many years, after a struggle." Consent from affected Indig- enous populations is only now being identified as an important consideration worldwide. But Kahgee says that, in the absence of a legislative framework for consent, Indigenous communi- ties must look for ways to secure consent through discussions and negotiations. "Not every community is go- ing to be in the position to do that and shouldn't have to be in the position to do that, so I think the clearer we can be on these things, the better. [The United Nations Declaration of the Rights of In- digenous People] gives us a lot of guidance on that about the things that require consent. It's just that how do we look at that or how do we codify that or put that into practice [in Canada]?" he says. Consent, says Julie Abouchar, is a process that allows the First Nations to identify all of their rights to the land and any impact development might have on the people. In a trilogy of decisions (Haida Nation v. British Co- lumbia (Minister of Forests), Taku River Tlingit First Nation v British Columbia and Miki- sew Cree First Nation v Canada (Minister of Canadian Heri- tage)) over land use of traditional Indigenous territories, the Su- preme Court of Canada in 2004 and 2005 determined it doesn't provide veto power but there is a constitutional duty to consult and accommodate Aboriginal people. The depth of consultations is de- pendent upon the strength of the claim and the seriousness of the impact, says Abouchar. The ul- timate goal is to secure the com- munity's consent, she says. It could consist of notification, having a meeting and determin- ing the impacts, she says, or it could involve providing the fund- ing and resources to convey de- tails about the project, including peer reviews, meetings and iden- tifying necessary approaches to mitigate and lessen the impacts. "I actually think that consent and the duty to consult process are converging. And that's partly where we're going to find the an- swer to how do we incorporate UNDRIP and free, prior and in- formed consent into the Canadi- an legal system," says Abouchar. The federal government indi- cated last summer that it is ready to embrace UNDRIP's standard of free, prior and informed con- sent as being the new benchmark of federal policy. It's an approach that allows First Nations to play a meaningful role in projects that are being developed within their territories, says Michael Fortier, a partner in Torys LLP's environmental and Indigenous law practices. "One of the issues with con- sent is it sounds like it is an obvi- ous concept," he says, as if there's one defined meaning. But he be- lieves it's a principle intended to include procedural and substan- tive aspects of active engagement between the developers and the First Nations so they are included in the decision-making process. It's not simply an issue of First Nations saying yes or no on a plan or having a veto, he says. It's more about them playing a meaningful role about how land is used or a project will be imple- mented. It may also include First Nations being involved in man- aging the ongoing issues once the project is up and running. That could include their input and even involvement through job creation. "The idea of consent as a one- time 'I give consent to some- thing' is often not what is truly desired. And I think it is also not advantageous. Ideally, what you create is a long-term rela- tionship where the various par- ties are respectful, understand the interests of the others, try to accommodate them and then create something that's better for everybody," he says. "That's a more involved and perhaps deeper form of consent." The courts, he adds, have emphasized the best approach is for the parties to get together to work it out in a collaborative way. But he sees complications in trying to legislate consent be- cause every situation is different. "What's tricky with free, prior and informed consent is it's not a comfortable fit with how the Supreme Court has talked about who has the burden when figur- ing out how to use land when that use will interact with Indig- enous rights," says Signa Daum Shanks, an Osgoode Hall law professor and a Métis. Indigenous parties currently have the burden to prove damage, which Shanks describes as out- dated thinking that should never have prevailed in the first place. The challenge, she adds, is for Canadian courts to acknowledge free, prior and informed consent that has been prevalent in argu- ments about international law. "It would be lovely if the Su- preme Court wrote a decision where they admitted they know FOCUS Signa Daum Shanks says Indigenous par- ties currently have the burden to prove damage in court disputes over land, which she says is outdated thinking that should never have prevailed in the first place. See Provinces, page 12 6 TH ANNUAL ANTI-BRIBERY AND CORRUPTION COMPLIANCE MAY 10 | TORONTO & WEBINAR www.lexpert.ca/legal-programs/anti-bribery 1-877-298-5868 | 416-609-5868 | lexpert.questions@thomsonreuters.com DON'T MISS OUT — REGISTER TODAY COURSE LEADER: JOHN W. BOSCARIOL, MCCARTHY TÉTRAULT LLP • Introduction and overview of the anti-corruption landscape for Canadian companies • Anti-corruption enforcement: the view from the RCMP • The US foreign corrupt practices act (FCPA): what canadian companies need to know • An industry perspective on anti-corruption enforcement and compliance: The view from snc-lavalin • Perspective from in house counsel: key compliance challenges and solutions • Investigating potential breaches within the company and dealing with enforcement Lexpert-AntiBribery_LT_Apr30_18.indd 1 2018-04-25 10:00 AM CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online

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