I am pleased to be here and to talk about developments surrounding the duty to consult as a result of recent court decisions. I also will share with you the Walpole Island Heritage Centre's experience on consultations with and accommodation of our rights and claims, and the interests of developers of development projects within the Walpole Island First Nation homelands.

I first delivered this paper in 2002 when I was Executive Director of the Heritage Centre. Back then the paper had a different title. The title did not include the word accommodation. Since 2002, however, the law in Canada has changed substantially and clarified the nature of the duty that must, in many cases, accompany the duty to consult where aboriginal claims have been made but not yet proven, such as the situation with our First Nation's claims to the water beds of parts of the Great Lakes.

2.0 The duty to consult First Nations: The law in Canada

The Canadian Courts, in recent years, have to a greater degree than in the past begun to recognize the significance to Aboriginal peoples of concerns we have about development which affects lands where we either have or claim Aboriginal title, or where our Aboriginal or treaty rights are affected. The significance of our land and other rights is so profound to our identities, cultures and Constitutionally-protected rights that the Courts have fashioned a legal duty on the part of the federal and provincial Crowns to consult with Aboriginal people who have proven or claim Aboriginal or treaty rights. I will describe below how, in both situations -- proven or claimed Aboriginal rights including Aboriginal title -- the duty is much more expanded than consulting with us to gauge our concerns, to treat us like – to use a word that grates on First Nations peoples but still continues to be used by governments and corporations – mere “stakeholders” along with other members of the public who do not have constitutionally protected aboriginal and treaty rights.

(a) The Crown's legal duty to consult and accommodate where Aboriginal rights including Aboriginal title is proven

There are now a long string of Supreme Court cases which recognize our rights, as Aboriginal peoples, to be consulted by the Crown where our Aboriginal title, other Aboriginal rights and treaty rights are affected. The recognition of the duty to consult First Nations started with the Supreme Court of Canada's 1990 decision in Sparrow. That case established the test for the Crown to meet when it was trying to legally justify interference with Aboriginal rights. In order to justify interfering with Aboriginal rights, said the Court, the Crown is legally required to first consult with the Aboriginal holders of those rights, including for example the rights to hunt, trap or fish, and then takes steps to minimize the detrimental impacts on Aboriginal rights and compensate the Aboriginal community where those rights are infringed. Though the Court did not use the word at the time, it is clear that the consultation required in the face of proven Aboriginal rights includes the duty to accommodate our rights. As I will discuss later, the duty can even include the obligation to obtain our consent which consent would not be provided without an Aboriginal people's rights having been accommodated to their satisfaction.

In the Delgamuukw case in 1997, the Supreme Court went one step further and considered the role of consultation where there was interference with Aboriginal title (which is a unique Aboriginal property right to land). The Delgamuukw case dealt with the Gitskan and Wet'suwet'en's land rights claim to their traditional lands in British Columbia.

The Delgamuukw case established an important principle: where Aboriginal title or rights have been proved, the Crown must consult with Aboriginal peoples about what happens on their lands. That consultation obligation, said the Court, flowed from the fiduciary (or trust-like) duty of the Crown to act in the best interests of Aboriginal peoples. The level of consultation required will depend on the particular situation and the importance of the right to the Aboriginal community. The consultation obligation could range from the need to discuss the proposed infringement with the First Nation, all the way up to the requirement that the Aboriginal community fully consent to the development. The Court ruled that, although it would be a rare case where an Aboriginal people would have a legal right to full consent over whether a development could proceed on their territory, the Crown always has a duty to consult in good faith with the people who have proven their Aboriginal title.

After the decision in Delgamuukw , First Nations across Canada finally had an important hook on which to hang our long-standing frustration with Governments' failure to consult with us. Sadly, however, the Crown has been slow to take up their legal duty, and consultation by the Crown with First Nations was happening on an ad-hoc basis, or not at all. So, in a process which has been costly for us, for industry and for all Canadians, First Nations have been forced to go to the Court to have decisions of federal and provincial governments overturned because of the failure to consult or properly consult with First Nations when their Aboriginal title or other rights are affected.

(b) Does the Crown have to consult and accommodate First Nations who lay claim to Aboriginal title, but who have not proven that title?

In the court cases after the Delgamuukw ruling, an important question regarding consultation remained outstanding: Does the Crown have a duty to consult with First Nations where the First Nations have claimed Aboriginal title or an Aboriginal right, but have not yet proved it in Court or had the rights recognized in a land claims settlement agreement?

The recent Haida and Taku River Tlingit cases, decided by the Supreme Court in November 2004, have finally and decisively confirmed that, yes, that duty to consult and (under certain conditions which I believe will frequently be met) to accommodate exists even where the Aboriginal rights and title are not yet proven. The Court confirmed the scope of the Crown's duty to consult Aboriginal peoples whose land rights or other Aboriginal rights are affected. Here are some of the principles which the Supreme Court laid out regarding the duty to consult Aboriginal peoples:

• Both the federal and the provincial Crowns have a duty to consult with First Nations who have asserted Aboriginal title or Aboriginal rights.
• The consultation duty is triggered when the Crown knows (or ought to know) that Aboriginal rights or Aboriginal title may exist, and is considering actions which may affect those rights.
• That consultation obligation is not a one-time shot: it is an ongoing duty that lasts for the length of time when an Aboriginal right is affected.1
• The duty to consult is always triggered where a claimed Aboriginal title or other right is affected, but the content of the duty will vary. There is a spectrum of what degree of consultation will be required, which will depend on the strength of the case for Aboriginal title or rights, and on the degree of seriousness of the impacts to the Aboriginal community affected.2 Where the case is strong and the impacts potentially serious, the duty will include the duty to accommodate.
• The legal source of the duty to consult and accommodate, where the Aboriginal title or right is not yet proved, is the “honour of the Crown.”3

The bottom line, ruled the Supreme Court is this: “The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and Aboriginal peoples with respect to the interests at stake.”

So, what does adequate consultation look like, where there is strong evidence that Aboriginal title or rights exist and where the potential impacts on the Aboriginal community are significant? This is more than an academic question to my community, Walpole First Nation. We have a long-recognized right to our unceded territory on Walpole Island, and our Aboriginal title claim is a strong claim. Our claim includes the Canadian portions of Lake St. Clair, the St. Clair River, the Detroit River, the western part of Lake Erie, and the southern part of Lake Huron, as well as various islands and parts of the mainland in southwestern Ontario, and some lands in the U.S.

We were very interested, as a result, in the Taku River Tlingit case, which the Supreme Court confirmed was an example of what adequate consultation entails when there is a serious Aboriginal title claim and potentially serious impacts because of proposed development. It is now clear to us that adequate consultation, in our case, where a proposed project or policy or program in or affecting the area under claim could substantially affect our aboriginal title, the Crown will be required to accommodate our claimed rights.

In the Taku River Tlingit case, the Court reviewed a situation where there had been an environmental assessment of a proposed mining project. Here are elements of the consultation process which the Supreme Court confirmed, in that case, constituted adequate consultation (and which we would expect as some of the minimum consultation requirements where Walpole Island First Nation's title or Aboriginal rights are seriously affected by a proposed development):

• There were multiple meetings between the First Nation, corporation and environmental assessment office staff to set up and implement a process which fully included the First Nation in the environmental assessment process.
• First Nation members participated on the overall environmental assessment Project Committee, and served on subcommittees dealing with concerns of particularly impact on their community.
• Financial assistance was provided to ensure that the First Nation could participate fully in the process.
• The First Nation's views were thoroughly and explicitly identified in the environmental assessment report, including where there were points of disagreement between the First Nation and the industry proponent, and those views were put before and considered by the Minister.
• Mitigation strategies were developed to address the concerns of the First Nation.
• The First Nation's approval was sought for the appointment of which experts conducted traditional land use studies and archaeological and ethnographic studies which assessed the impacts of the development. When the First Nation had concerns about the adequacy of one of the expert's reports, it was sent back for revision to address those concerns.
• The industry proponent responded, with detailed information, to the First Nation's written and oral requests for information about impacts on fish, wildlife, terrain sensitivity and other impacts.
• The First Nation was expected, after the environmental assessment process, to participate in long term resource management strategies for the area, in the development of baseline data to track the impacts of the development, and in decision-making regarding the decommissioning of the project. In addition, there was a requirement that the First Nation would be consulted about any subsequent permitting, approval and licensing processes that were part of the overall project, but which would occur after the environmental assessment itself.

The Taku River Tlingit case showed, an example which we can now turn to, what some of the components of adequate consultation are where there is a serious, though unproven, Aboriginal title claim. It also shows that environmental assessment processes can be part of the way in which the duty of consultation is met, but the consultation obligation is not finished when the environmental assessment process is finished. There is an on-going consultation duty which will arise, for instance, in long term resource management and whenever new permits and licenses associated with a project arise.

(c) Do corporations have a duty to consult and accommodate Aboriginal peoples?

Another one of the significant questions which the Supreme Court has finally addressed, in the Haida and Taku River Tlingit cases, is whether corporations also have a legal duty to consult Aboriginal peoples where Aboriginal rights or title is affected.

The British Columbia Court of Appeal, in the Haida case, found that the Weyerhauser (a large forestry company with timber licenses to log parts of the lands where the Haida had an Aboriginal title claim) had a duty to consult when the Haida's Aboriginal title could be affected.

The Supreme Court did not agree. The Court found that, because the duty to consult in the case of unproved Aboriginal title flows from the legal doctrine of the “honour of the Crown,” there was not a legal duty on third parties (such as corporations) to consult where Aboriginal rights or title could be affected.

The Supreme Court also said, however, that the Crown could delegate some of the procedural aspects of the consultation duty to corporations. When that occurs, the corporations would in fact have the duty to consult and, as discussed earlier, to accommodate. (This happens, for example, where an environmental assessment or other process mandated by statute requires industry to consult First Nations). In addition, the Supreme Court said, corporations could still be liable where the duty to consult was not met. (This could happen, for example, where a land tenure, permit or license is overturned because there has been a failure to adequately consult an Aboriginal community whose claim to Aboriginal rights or title is affected).

But even apart from these situations, I believe that corporations must be integrally involved in the Crown's consultation process if the Crown is going to be able to carry out its legally required duties.

I say this because I believe that the Crown cannot in most cases successfully carry out their own duty without the corporations being integrally engaged in the consultation process. Dealing with the effects of a project and accommodating claimed aboriginal rights is not something that can be done by the Crown in a formulaic way. The devil really is in the details: the design, construction and operation of a project, program or policy will be the details that need to be discussed in order to meet the duty to consult and accommodate. Those details will, in many cases, not be known or fully known or understood by the Crown but only by the corporations whose project it is. Also, the ways in which accommodation can be achieved --- e.g., by altering the proposed mitigation measures for a power plant that would take from or discharge water to the Great Lakes – will also frequently be best understood by the corporation proposing the project. In short, I believe that the Crown could well fail in its duty if corporations are not integrally engaged in the consultation process.

3. The benefits to corporations of consulting and accommodating Aboriginal peoples claims and rights

Beyond the corporate duties to consult where the duties have been delegated to them in an environmental assessment process for instance, and beyond the extent to which I believe corporations cannot disentangle themselves from the Crown's consultation process without risking that the Crown will be unable to meet its legal duties to consult and accommodate, it is also important to consider why corporations will want to consult with First Nations. The reason is not one that comes from assessing legal risks. My message is simple: consultation and accommodation are simply good business.

As Chief of the Walpole Island First Nation (and previously, as Executive Director of the Walpole Island Heritage Centre), I have been involved in assisting our First Nation in consultations with corporations and different levels of government about a wide variety of developments. The range of involvement of Walpole Island First Nation on external projects to date have included formal hearings, community meetings, external reviews and provision of input into permit applications, establishment of on-going environmental liaison committees, and the negotiation of Memoranda of Understandings with project proponents. The types of external projects that the First Nation has been consulted on have included pipelines, marinas, hazardous waste landfills, dredging disposal facilities, dredging of contaminated sediments, power generation projects, highway developments and industrial wastewater treatment operations.

We have learned that there are good reasons for industry to consult with us. In some ways, the Supreme Court decisions may not affect the evolving relationships between corporations and First Nations for one important reason: many companies have already realized that consulting with First Nations, in whose territories they plan to operate, is good business. Industry plays an important and practical role in the consultation process.

The kinds of benefits that can be obtained by openly consulting with Aboriginal peoples and accommodating our rights and interests in relation to proposed developments are numerous. Here are ten reasons why corporations benefit when they consult with and accommodate First Nations about development on our territories:

1. Consultation and accommodation create a positive relationship between the corporation and the Aboriginal leadership and membership of a community. A positive working environment is, as we all know, highly valuable.
2. Consultation and accommodation avoid litigation. Most companies do not want to be one of the parties in precedent-setting litigation which goes all the way to the Supreme Court to decide on whether there is a duty to consult and accommodate! Litigation is costly and time-consuming, and is a path which most corporations (and First Nations) want to avoid.
3. Consultation and accommodation avoid delay and manage project risk. Most corporations recognize the real and substantive interest that their companies have in the outcome of the consultation process. They want to ensure that adequate consultation and accommodation has happened so that there is a minimized risk of licenses, permits or approvals being set aside. One key component of ensuring proper consultation and accommodation is providing funding so that there is full and adequate First Nation participation in the process.
4. Consultation and accommodation reflect the reality that industry, not government, is often in the best position to address First Nations' concerns. Industry has the ability to involve First Nations in a project, modify the project's design, implementation or operations to address First Nations' concerns, and the ability to provide the economic benefits to the First Nations to offset some of the impacts of a development.
5. Consultation and accommodation allow the benefit of incorporating and enhancing traditional ecological knowledge in:
   1. baseline environmental studies (e.g., directing the location of the studies so that it properly targets valuable habitat)
   2. environmental monitoring protocols (e.g., by adding parameters that should be monitored for, and identifying appropriate locations where the monitoring should take place)
   3. development of mitigation measures (e.g., including fundamental planning-level mitigation measures like adapting the routing of pipelines, roads and other corridor-type developments to avoid valued habitat)
6. Consultation and accommodation create a partnership approach to resolving environmental problems during a project's construction and operation. Corporations may see having to work with Aboriginal representatives on a joint environmental committee as a cost and administrative burden, but the benefits of a second set of eyes to look at a problem (with eyes who know the territory better than anyone from outside) and come up with ways to solve it, is not to be underestimated.
7. Consultation and accommodation increase the chances that qualified employees from the First Nation membership will work on the project. It is trite to say that not only does a job benefit the employee; it also benefits the employer. Training of potential Aboriginal employees may be a necessary element of achieving this objective, because many Aboriginal people across Canada are at a substantial disadvantage when it comes to obtaining higher education and training. Employers may be called on to contribute some of those training costs, but the long-run benefit of having employees who reside close to a development and have a personal interest in seeing it operate well and with limited environmental impacts must be considered alongside the costs.
8. Consultation and accommodation help to establish clear mechanisms for informing the Aboriginal community affected by a development about developments and impacts in the area affected by the development. This, in turn, reduces the potential degree of community-level frustration with a project.
   
   When members of the community sit with corporate employees on a joint environmental committee and advise people in the community about what is really happening based on actually reviewing the information with adequate financial resources to do so, and the Aboriginal members on that joint committee live in and talk with members of the Aboriginal community about what is really happening, unfounded rumours about environmental impacts can be dispelled, for instance.
9. Consultation and accommodation enhance the opportunities for Aboriginal businesses to supply goods and services to a proponent's project, which can substantially improve community relations, as well as meeting the corporation's needs for those goods and services.
10. Consultation and accommodation provide clear avenues for First Nations to communicate to corporations what their plans for community developments are, so that the corporations and First Nations can work together to make those community developments successful. To give an example, if a First Nation were considering building a facility which required specialized equipment, or wished to build a certain type of building, the corporation and the First Nation might together be able to work out an arrangement for the purchase of a corporation's surplus equipment or infrastructure to the benefit of both.

In Walpole Island First Nation's case, we have had to use a variety of methods to urge the corporations to agree to consult with us, and to consult in a meaningful way. Our First Nation has adopted and published on our website, and we distribute to proponents, our “Environmental Policies, Guidelines and Information for Externa l Project Proponents” . In these guidelines, we urge corporations to voluntarily consult with us and, where appropriate, to enter into a formal Memorandum of Understanding or Impacts and Benefits Agreement with our First Nation, when they are considering significant developments. As our proponent guidelines set out, a Memorandum of Understanding or Impacts and Benefits Agreement can cover a variety of topics.

1. Recognition of WIFN's land claims, and its interest in self government.
2. Definition of an on-going role (e.g., liaison committee or a joint committee made up of WIFN and company appointees) for the community in jointly implementing, managing, and monitoring the project.
3. Definition of the make-up of the committee which would include representatives from the First Nation and possibly one or more consultants retained by the First Nation.
4. Preparing a schedule of meetings for the committee, and other proponent/First Nation meetings.
5. Agreement on the combination of national, provincial, or international environmental standards that will be used in the monitoring of the project.
6. Definition of the direct advisory role that WIFN would provide into the design, implementation, and evaluation of monitoring studies.
7. Description of what effective compliance monitoring, and environmental effects monitoring, would consist of for the project, and what the forms and records would be that are used to document the monitoring system.
8. Development of monitoring threshold levels that would trigger action, and the notification protocols in that situation.
9. Establishing an annual schedule for the reporting and interpretation of monitoring results and for reporting to the committee, the community, and other interested Aboriginal communities in the local area.
10. Development of Notification Protocols to the First Nation for specific project construction or operation activities.
11. Establishment of annual budgets and disbursement mechanisms for on-going project related activities (for example, monitoring and database management activities), and for other environmental programs addressing broader regional objectives for which mutual benefit could be established.
12. Identification of all the potential costs and benefits for the community in the project, not only environmental but also social and economic. Identification of opportunities to develop business partnerships, and the definition of specific First Nation employment and training opportunities. Also opportunities for the provision of any other additional services to the community that the project provides potential for, should be identified.
13. Development of an Aboriginal relations policy by the project proponent, if not already in place.
14. Agreement on joint positions that may be required in any regulatory processes. For example, joint submissions to governmental bodies or regulatory agencies on draft Certificates of Approval may be possible after effective consultation has taken place. These submissions may include, for example, such issues as contingency plans, financial assurances, monitoring programs, or emergency response planning. Statements on meeting federal and provincial and other legal requirements for timely Aboriginal consultation and on the thoroughness of evaluation of Aboriginal impacts could also be included in the submissions.
15. Payments in lieu of tax payments.
16. Technical and financial support in enhancing research, monitoring and training capacities in all areas of environmental protection within the traditional territory, and in sharing information concerning environmental protection as it affects the traditional territory.
17. Agreement to participate in the Circle on Environment and Development which brings together governments, organizations, individuals, and private business to promote an integrated local perspective on environmental and development issues in the St. Clair watershed.

Taking into account Aboriginal peoples' concerns through negotiating these MOUs or Impacts and Benefits Agreements yields benefits, not only to those corporations who agree to them, but just as importantly, to the environment that we must all share and protect, which Aboriginal people are a part of and have a special responsibility to protect for the generations to come.

4.0 Summary

The Courts have found that First Nations in Canada have to be consulted by governments and, under conditions that I expect will frequently be met, to have their rights accommodated if their Aboriginal title (whether proven in court or not) or other Aboriginal and treaty rights will be interfered with by a decision to proceed with a development. The Supreme Court has found that, although corporations are not under a legal duty to consult with First Nations, the consultation process can be delegated to them by government, and corporations can have some liability where the consultation obligation has not been met. Although the Courts have had to steer governments and corporations in this direction, it is a direction that can yield benefits not only to Aboriginal peoples whose rights and title will be or may be negatively affected. It can also yield benefits to corporations who choose to embrace consultation and accommodation as means to enhance the success of their project and limit its negative environmental impacts. Consultation and accommodation are good business. Walpole Island First Nation considers consultation and accommodation as integral to the process we require of reaching a fair agreement with us whenever our Aboriginal title or Aboriginal rights may be affected by development.

5. Relevance to Specific Claims – NOTE: THIS PART WAS NOT REVISED FROM THE 2002 DRAFT

What is the application of the duty to consult to specific claims? My submission is that there is a significant lesson to be learned from the above discussion for us in our work around the resolution of specific claims. I would argue that the duty to consult has direct relevance to the specific claims resolution process. The importance of consultation with the First Nation throughout the protracted process of resolving specific claims cannot be over-stated. It is also my submission that the Crown has a duty to consult in resolving specific claims (which, at their roots, are about matters affecting our treaty rights) just as much as when it is considering making decisions that would affect Aboriginal title or rights of First Nations people. That duty to consult should be carried out in such a way that it includes a community consultation component, if it is to be effective.

I have experienced first hand that specific claims resolution can take decades. I sometimes wonder why I'm being punished to serve a life sentence of endless delay. One particular claim resolution process has spanned four decades. In the mid-70s the Walpole Island First Nation (WIFN) 400 hundred Reserve claim in Enniskillen Township was fully researched and subsequently submitted to the federal government. To make a long story short our community participated in a ratification vote on May 11, 2001. The settlement agreement was defeated by a wide margin. In hindsight, I believe that lack of adequate community consultation had a lot to do with the resulting negative vote.

On the one hand back in the 1970s our community was duly informed about the federal specific claims policy - Outstanding Business, A Native Claims Policy, Specific Claims and the circumstances surrounding the improper alienation of our Reserve lands in Enniskillen Township. The claim was accepted for negotiation in 1983. Prior to the commencement of negotiations a community survey was conducted to get an idea of what an acceptable settlement would contain. This served as a guide for the First Nation's negotiators. Personally, I believe that the community was highly informed and were actively engaged in the process at the time. However, for a variety of reasons the negotiations were started, stopped and resumed on several occasions. I believe these repeated delays not only disenchanted our community, but effectively disengaged the community from the process. The community just didn't seem to understand why negotiations kept getting stalled and broken down. It was more than one quarter of a century from the preliminary research stage to the settlement ratification vote. Obviously, I have aged since and community members got older in 25 years. In most First Nation Reserves across Canada statistically the majority of the community population is under the age of 26. WIFN fits this pattern to a ”T”. Some of our younger First Nation citizens were not even born when the Enniskillen land claim was submitted to the federal government. Yet these individuals were now of voting age.

A lot has transpired since our early community consultations yet the survey to gauge what would constitute an acceptable settlement to our community was never updated. The ratification vote results clearly indicated that the settlement agreement was not acceptable. Somehow the target was missed. There were likely many reasons for the rejection. Unfortunately exit polling was not conducted. Nevertheless, I would suggest one of the major reasons is that we failed in our collective duty to consult on a sustained level. This is just one example illustrating the need for community consultations.