Navigating consent with groups a careful process

Randall Kahgee is senior counsel with Pape Salter Teillet LLP who specializes in Aboriginal rights law. He is also lead adviser and former chief of to the Saugeen Ojibway Nation, whose territory includes the current Bruce Nuclear Generating Station, along with the proposed waste site. 

Kahgee was legal counsel for two bands involved in negotiating the agreement, the Chippewas of Nawash Unceded First Nation and the Chippewas of Saugeen First Nation — whose territory has been affected by the Bruce Nuclear Generating Station, 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 communication about the project continues under the eyes of the federal government. In August, federal Environment Minister Catherine McKenna asked the OPG how the project might affect area First Nations. Details on the estimated $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 Indigenous 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 communities must look for ways to secure consent through discussions and negotiations.

“Not every community is going 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 Indigenous 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 Columbia (Minister of Forests), Taku River Tlingit First Nation v British Columbia and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage)) over land use of traditional Indigenous territories, the Supreme 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 dependent upon the strength of the claim and the seriousness of the impact, says Abouchar. The ultimate goal is to secure the community’s consent, she says.

It could consist of notification, having a meeting and determining the impacts, she says, or it could involve providing the funding and resources to convey details about the project, including peer reviews, meetings and identifying 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 answer to how do we incorporate UNDRIP and free, prior and informed consent into the Canadian legal system,” says Abouchar.

The federal government indicated last summer that it is ready to embrace UNDRIP’s standard of free, prior and informed consent 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 consent is it sounds like it is an obvious concept,” he says, as if there’s one defined meaning. But he believes it’s a principle intended to include procedural and substantive 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 implemented. It may also include First Nations being involved in managing 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 something’ is often not what is truly desired. And I think it is also not advantageous. Ideally, what you create is a long-term relationship where the various parties 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 because 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 figuring out how to use land when that use will interact with Indigenous 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 outdated 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 arguments about international law.

“It would be lovely if the Supreme Court wrote a decision where they admitted they know consent is the issue. It would be even more helpful for everybody if there was a more obvious reference in judicial writing. And, second, it sure would be handy if the Crown would check that and look itself in the mirror and say: ‘When you have to pay damages, it’s because you took something away.’ And what the Crown took away was consent,” she says.

“We can say they damaged a forest. We can say they put kids in residential school. But if we wanted to go deep into it, we can say that they didn’t ask permission. And when the Crown loses in court, it’s because it didn’t ask permission.”

Legislation might work, she says, but one province has to take the lead.

Former Ontario premier Bob Rae, a partner at Olthuis Kleer Townshend LLP, says the challenge is that the provinces have jurisdiction over natural resources, mining, forestry and a lot of environmental issues but there’s been no clear indication of movement at that level.

“It will be that the provinces will need to respond to the UN Declaration by negotiating with First Nations,” he says. “And I think, to be very blunt about it, I think the provinces have been very slow to respond to what is a moveable feast; it’s changing. I think the provinces have been just continuing along a path without really being aware or wanting to admit that there is now a challenge for them and for everyone else, as well, in terms of exactly how this is going to go forward.”

But until legislation includes the right of free, prior and informed consent for First Nations, Kahgee says, they must argue and hope to negotiate a deeper level of involvement for every project that is proposed.

Along Lake Huron, the Saugeen Ojibway Nation obtained a third commitment from OPG in its plans for the Bruce plant site. In addition to consent and active participation in the project and recognition of legacy issues including the impact on rights, health, environment and the broader context of the land and water, the First Nations will be involved as the project owners work toward a permanent solution to waste issues in the territory.

“With those commitments and now with the most recent commitment from the Nuclear Waste Management Organization, that creates the full space now for our communities to have the dialogue they need to have and ultimately come to hopefully an informed decision about what that means,” says Kahgee.