Tripartite agreement with First Nations, BC and Ottawa lacks clarity on consultation: lawyer

Shifting terminology incorporates UNDRIP language, not Haida-test wording

Tripartite agreement with First Nations, BC and Ottawa lacks clarity on consultation: lawyer
Saul Joseph

A tripartite agreement between the federal government, the province of British Columbia and First Nations regarding nature conservation offers strong commentary about the Crown working in partnership with the Indigenous Peoples and their governments. Still, the details of the framework leave several questions open as to how that will happen, according to one lawyer.

Saul Joseph is partner and co-chair of the Indigenous law group at Vancouver-based Clark Wilson. He is also of Coast Salish descent and is a member of the Squamish First Nation (Skwxwú7mesh). He says the wording of the agreement still leaves him with questions.

“Overall, the recitals generally look pretty good to me, but as we know, they have a legal status that is less than binding agreements in terms of the body of the agreement. They set the tone, and there is good content there, but they also create confusion with respect to the actual substance of the agreement,” says Joseph.

For example, he points to s. J of the Tripartite Agreement on Nature Conservation, which is still part of the recital. It says Canada and BC will “ensure appropriate processes and resources are in place so that First Nations may effectively engage in the implementation of this Agreement.”

“One of the things that nations run into is insufficient or complete lack of capacity funding. And this is a pan-government issue,” Joseph says. “Oftentimes referrals are provided to nations that are not provided with any funding in order to review and respond. Even if it’s something substantial, like an environmental assessment process, typically funding is inadequate…. They’re saying ‘appropriate resources’ here. And I'm not exactly sure what that might mean.”

This, however, is just a framework, with details to be worked out later, so issues, including sorting out the appropriate resources, may be addressed in the coming year. The agreement includes a provision that the parties have 12 months to develop what it calls “a terms or reference committee” to establish the “purpose, membership, roles and responsibilities, and details regarding operations and decision-making processes.”

What concerns Joseph more is the weakness and variation in language, especially in light of the recent Gitxaala decision regarding the BC Mineral Tenure Act and the rights of Indigenous People to be consulted when mining activities are undertaken on their asserted territories. In that case, the judge acknowledged the legal effect of the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which BC has implemented. DRIPA links to the United Nations Declaration on the Rights of Indigenous People (UNDRIP), which was implemented by the federal government.

“They came back with some concerns with respect to the applicability and the drafting of DRIPA itself.  [The decision] was quite critical of the language in terms of whether it was actionable in section three of DRIPA, and I see a lot of similarities here.”

For example, he points to recital V of the agreement, which says, “Canada and BC seek to consult and cooperate, in full partnership with First Nations…” and notes, “that’s different. Seeking is a lower standard than saying that they will. Similarly, in recital W, ‘Canada and BC will, where appropriate, work together…’ I’m seeing quite a bit of that language effectively diluting the obligations of Canada and BC to consult and cooperate.”

Elsewhere in the document, phrases like “Canada and BC will…work in partnership with First Nations...” (from s. 6.4.3) and “BC will participate in government-to-government territorial planning with First Nations…” (from s. 6.4.5) and “Canada and BC will collaborate and engage with First Nations…” (from s. 6.4.6) are also used, further adding to the ambiguity of the language.

Even the phrase consult and cooperate is not one that First Nations or lawyers working on behalf of Indigenous clients may want to see. The Haida test, which states that the Crown has a duty to consult and to accommodate, if appropriate, has been the standard in Canada and the language used in this framework agreement isn’t that referred to in Haida.

“There’s one important point on consult and cooperate. We in the Aboriginal law bar and nations and anybody who practises in this area understand what consultation means pursuant to the Haida analysis, but… that language [consult and cooperate] is taken from UNDRIP itself and is, to my mind, a lower standard than what we understand consultation to be.”

Joseph adds that while the province did create a secretariat for DRIPA implementation, which issued some interim guidance about consult and cooperate and how to align laws, that guidance is “pretty far from the understandings that we have in terms of the Crown’s obligations pursuant to Haida and, on my reading, it’s procedurally substantively a lower standard.”

One section that Joesph is pleased to see is s. 9.5, which deals with data information collection and privacy and says that First Nations’ data will be handled with ownership, control, access and possession (OCAP) in mind.

“First Nations have a lot of proprietary, sensitive, confidential information. And there’s a long history of that information being utilized by proponents or the Crown in various decision-making or other processes inappropriately,” explains Joseph. “OCAP is a good standard in terms of protecting in Indigenous knowledge. I actually like seeing the inclusion of that there.

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