Monique Ross and Peggy Smith 1
Indigenous Peoples occupy a unique place in the world's forests and can play a key role in the management of those forests. At international, national and local levels, Indigenous Peoples and forest managers are struggling to give practical meaning to the broad recognition of the principle of protecting Indigenous Peoples' customary land uses and rights. One key level where these issues are being addressed is in the arena of Indigenous participation in decision-making processes. This paper explores the legal background of the "duty to consult" in Canada; best practices being developed by Indigenous communities, governments, the forest industry and non-governmental organizations; and the challenges in maintaining and improving these best practices. In spite of the progress achieved in recognizing the unique role of Indigenous Peoples in forest management, there are still barriers to overcome in order to give full meaning to the principle of adequate consultation with Indigenous Peoples in forest management, notably the need for their "full, free and informed consent." The paper builds on previous analyses by both authors, Ross on "the duty to consult" and Smith on principles of meaningful consultation.
Indigenous Peoples occupy a unique place in the world's forests. If forest managers can be effective in protecting Indigenous Peoples' cultural diversity and their unique knowledge and relationship to forest lands, Indigenous Peoples are situated to play a pivotal role in the protection of biodiversity. To do this the issue of Indigenous participation in decision-making must be addressed. By giving full voice to Indigenous Peoples, opportunities to protect cultural and biological diversity can be fully explored. Full voice means that Indigenous Peoples' right to self-determination is recognized and their involvement in decision-making thus carries the requirement of full, free and informed consent.
This paper explores the legal background of the "duty to consult" in Canada, best practices on meaningful consultation with Indigenous communities in forest management in Canada and challenges in maintaining and improving these best practices.
Within Canada, recent legal decisions have defined governments' consultation obligations to Indigenous Peoples. The courts have held that the Crown is under a duty to consult when its actions or decisions threaten to interfere with Aboriginal rights, lands, traditional land uses or interests. This duty stems from the fiduciary relationship that exists between Aboriginal Peoples2 and the Crown, a relationship that was created by history, treaties and legislation. The duty rests equally with the provincial and federal Crowns. Section 35 of Canada's Constitution Act, 1982 provides that existing Aboriginal and treaty rights are recognized and affirmed. In the landmark R. v. Sparrow (1990) decision, the Supreme Court of Canada held that any Crown action that interferes with the exercise of these constitutionally protected rights must meet a strict justification test. One component of the justification test is that the Crown must consult with Aboriginal Peoples prior to interfering with their rights. The duty to consult arises both from the fiduciary relationship between the Crown and Indigenous Peoples and from the justification analysis under s. 35.
Consultation is supposed to avoid or mitigate infringement of Aboriginal rights to the extent possible and involve affected Aboriginal Peoples in determining alternatives and accommodations to minimize infringement. This means that consultation must take place early, before infringement occurs. The duty to consult is triggered when a right might be infringed. Recent court decisions in British Columbia (BC) have established that, contrary to the provincial government's arguments, consultation is required before the right asserted is proven to exist in court.
The courts have been reluctant to define the nature and scope of consultation stating that it varies with the nature of the right which might be infringed and the seriousness of the potential infringement. There is a scale between, at one end, a mere discussion of decisions to be taken and at the other, the need to obtain the full consent of an Aboriginal community, notably when the lands affected are title lands and the interference with Aboriginal rights is extensive (Lawrence & Macklem 2000). But in all cases, consultation must be in good faith and seek to substantially address the concerns of affected Aboriginal Peoples. Consultation should provide both government and the affected community sufficient information to make an informed decision. Both need to have a full understanding of the proposed actions or decisions and their impact on the rights and uses of the affected Aboriginal communities. The Crown is required to communicate all relevant information to the affected community and must fully inform itself about the scope, importance of and potential impact of its proposed actions or decisions on Aboriginal land uses.
The courts distinguish the fiduciary and constitutional duty to consult from that of procedural fairness owed by statutory decision-makers under the rules of natural justice or a specific legislative scheme. In resource development, statutory provisions such as those in environmental impact assessment or resource legislation usually include public consultation. The judiciary has held that the Crown's duty to consult is more rigorous than that existing under procedural fairness. It is not sufficient for the Crown to consult Aboriginal Peoples as it would other "stakeholders" or the public at large. A distinct or more extensive process is required. Further, the government cannot attack the affected Aboriginal community for refusing to participate in consultation designed for the general public.
In the recent Haida case, BC's Court of Appeal expanded the Crown's fiduciary duty to consult to forest companies holding licenses for timber harvesting on public lands. The court held that the company, in acquiring an exclusive licence to harvest timber, assumed a fiduciary obligation to Aboriginal Peoples which carried with it a duty to consult and seek accommodation with them about their operations. The company must satisfy itself that any infringement of Aboriginal rights in which it participates is justified, and if justification requires consultation, that adequate consultation with affected Aboriginal Peoples has taken place. This consultation obligation is shared with the Crown. For those activities which fall within the company's management responsibilities and upon which the Crown has no day-to-day control, the duty to consult falls on the company alone and is not shared by the Crown.
Although there may be legal requirements for consultation, many Indigenous Peoples do not rely on court decisions but on their own sense of attachment to the land and self-definition as nations. Notions of sovereignty (even when Indigenous communities accept co-existence with recognized nation states) and self-determination persist. Indigenous Peoples' concept of meaningful consultation carries the requirement of recognition by other governments that they are equal players in resource management decisions. Agreements about lands and resources are therefore about sharing benefits, ensuring continued access and, when it comes to consultation, giving full, prior and informed consent for any decisions which will affect the Indigenous way of life.
Full, prior and informed consent implies a number of principles which include:3
Although not going as far as seeking consent, governments in Canada have begun to develop policies and legislation prescribing that Indigenous Peoples be involved in forest management decision-making. National policies, such as the National Forest Strategy (1998) and the Canadian Council of Forest Ministers Criteria and Indicators of Sustainable Forest Management (1995), require Aboriginal participation and the protection of Aboriginal and treaty rights in forest management. In the non-governmental arena, certain forest companies are entering into agreements with Aboriginal communities and forest certification is helping to define best practices on consultation with Indigenous Peoples.
Because the Canadian Constitution of 1867 gave responsibility for "Indians and lands reserved for Indians" to the federal government, and control over natural resources to the provinces, provincial governments have until recently failed to address the connection between Indigenous Peoples and lands and resources. Provincial governments are only beginning to incorporate international and domestic legal requirements for Aboriginal consultation in their forest legislation and policies. The following review focuses on recent developments in the provinces of Quebec and Ontario. However, even these best practices are limited in their scope and illustrate the reluctance of provincial governments to fully endorse and accommodate the rights of Indigenous Peoples in forestry development.
In 2001, the province of Quebec amended its forest legislation to include provisions giving special consideration to the needs of Aboriginal communities. These provisions are "enabling" provisions; they simply authorize the government to take specific actions, without any requirement that action be in fact taken. Nevertheless, they provide a legal framework for change.
The Forest Act now enables Quebec to adapt its forest regulations to reconcile forest management activities with Aboriginal land uses. The Minister of Natural Resources has the discretion, at the request of an Aboriginal community or on his own initiative following consultation with an Aboriginal community, to prescribe standards of forest management that differ from provincial standards, in order to give proper consideration to the subsistence, ritual and social activities traditionally carried out by Aboriginal community members. The licence holders must then adjust their forest management plans accordingly.
The Act also enables the Minister to enter into agreements with Aboriginal communities for the delegation of management powers over forest reserves, granting of forest management contracts or issuing of forest management permits. These provisions allow Aboriginal communities to have access to timber, with the possibility of managing forests under forest management standards that are more flexible than provincial standards and better accommodate non-timber activities.
The Forest Act also provides for public consultation on the development of a provincial forest policy. Special procedures must be in place for consultation with Aboriginal communities. A draft consultation policy published in 2001 (MRN 2001) states that these consultation procedures will be established in collaboration with the Aboriginal communities and tailored to each individual situation.
In accordance with provincial guidelines on Aboriginal affairs published in 1998, the provincial government has signed various agreements with Aboriginal communities to facilitate access to forest resources, promote Aboriginal participation in the forest sector, or facilitate harmonization of forest operations with traditional or eco-tourism activities. The most significant agreement is the one signed in 2002 with the Cree of Northern Quebec. The forestry provisions of this agreement provide for the application of a different forestry regime in the James Bay territory, one that should enable the Cree to exercise a much greater control over forest operations and maintain their traditional way of life while benefiting from forest development.
Ontario has also amended its forest legislation to facilitate the involvement of Aboriginal communities in forest management activities and to adjust its forest regime to Aboriginal needs and uses.
An important factor of change in Ontario's forest legislation and policy was the environmental assessment of the provincial forest management regime, conducted over a six-year period and concluding in 1994. In its final decision, the Environmental Assessment (EA) Board responsible for this review gave approval to the Ontario Ministry of Natural Resources (OMNR) to proceed with its forest management activities, subject to numerous terms and conditions. Several of these conditions relating to Aboriginal issues were: 1) to ensure that the unique values of Aboriginal Peoples were identified and protected in forest management planning; and 2) to enable Aboriginal communities to share in social and economic benefits from timber operations. The resulting terms and conditions reflect these objectives.
The Crown Forest Sustainability Act, 1994 considered the EA Board's conditions. The Act enables the Minister to enter into agreements with First Nations for the joint exercise of the Minister's powers concerning forest management planning. The Forest Management Planning Manual, a regulation to the Act, contains more detailed requirements concerning Aboriginal Peoples, which implement some of the EA conditions.
The Planning Manual stipulates the contents and preparation of forest management plans. It requires that the OMNR and affected Aboriginal communities prepare a Native Background Information Report for each forest management unit. The report summarises past resource use and forest management concerns of Aboriginal communities and requires a values map. Aboriginal communities can also take part in a Native Consultation Program, which gives them an opportunity to comment on the protection measures adopted by the forest management plan authors to address their concerns. The Manual does not contain any detailed guidelines or standards for the preparation of background reports or consultation. Finally, the Planning Manual mentions the possibility of negotiations between government representatives and Aboriginal communities to improve socio-economic benefits but the OMNR acknowledges that these negotiations have been inadequate (OMNR July 2002).
The Planning Manual is undergoing revisions and the OMNR is recommending some slight changes to Aboriginal consultation procedures which would require "reasonable efforts to meet with individual Aboriginal communities in or adjacent to the management unit to develop an appropriate approach for Aboriginal consultation." Although Ontario has what it describes as "provisions for special consultation efforts with Aboriginal people," the recommended changes for "reasonable efforts" do not fully reflect the legal requirements for the duty to consult. It is the lack of negotiated or mutually acceptable agreements with Aboriginal organizations which contributes to a widespread reluctance on the part of Aboriginal communities in Ontario to endorse and participate in provincially-determined forest policies.
In contrast to the current commercial forest zone in Ontario, initial discussions between First Nations and the OMNR about how to develop previously inaccessible northern forests may lead to new types of agreements. The Northern Boreal Initiative (NBI), a proposal for a community-based land use planning approach to development of these northern forests, may give First Nation communities a stronger voice in decision-making. The NBI was fostered not only by First Nation concerns but supported by the 1999 Ontario Forest Accord in which the OMNR, environmental groups and the forest industry agreed to the "orderly development of the north" with conditions, one of them being the "full agreement of affected First Nation communities."
Two stakeholder groups exercise major influence in forest management in Canada, the forest industry who secures licenses to harvest timber from provincial governments and invests to process that timber, and environmental groups whose direct action and sophisticated lobbying for forest conservation have earned them a place in decision-making. Industry responses to the requirements to consult with Aboriginal Peoples and the role of Forest Stewardship Council certification, supported by environmental groups, will be briefly examined.
The forest industry response to Aboriginal issues ranges from a denial of responsibility to address these issues to innovative agreements with Aboriginal communities. On the one hand, as in the Haida case previously discussed, some forest companies argue that it is the government's, not their, responsibility to address Aboriginal interests in lands and resources. They contend that since governments have been unable to resolve these issues, then industry cannot be expected to do so. However, as the courts have ruled, the duty to consult rests not only with governments, but also with those to whom governments delegate responsibility. Other companies have decided to pursue agreements with Aboriginal communities without government involvement. These agreements range from simple contracts to business partnerships or joint ventures. And, although in the formative stages, forest companies are now beginning to explore protocol agreements negotiated with Aboriginal communities to define their role in decision-making.
Environmental groups support voluntary forest certification through the Forest Stewardship Council. Forest certification involves a company submitting its forest management operations to audits by an independent third party in accordance with a set of standards which are often a cut above government forest regulations. In the case of FSC, Principle 3 on Indigenous Rights goes further than domestic law and requires not simply consultation, but "control" over lands and territories. Principle 3 contains unequivocal language on the need for free and informed consent by Indigenous Peoples, "a level of protection to Indigenous People previously unheard of in forestry planning" (Collier et al. 2002).
Over the past 20 years, there have been clear judicial advances in Canada with respect to the recognition of Aboriginal rights and the definition of governments' and industry's obligations to consult with Indigenous Peoples. There is also greater recognition amongst governments and resource companies of these legal developments and of the need to consult Aboriginal Peoples meaningfully in resource development and planning. Non-governmental initiatives such as Forest Stewardship Council certification have also contributed to raising the bar in the treatment of Indigenous Peoples. Progress is noticeable in forest policies and practices, but the legislative framework of forest management is only beginning to be changed in some provinces to reflect the new legal reality. And, finally, even in the absence of a supportive legal climate, Indigenous Peoples themselves maintain a spirit of self-determination which compels all parties with a stake in forest management to seek their full, free and informed consent in forest management decision-making. Once a new relationship emerges, then there is hope that the critical issues of biodiversity in forest management can be addressed through collective efforts.
Canadian Council of Forest Ministers, 1995. Defining Sustainable Forest Management: A Canadian Approach to Criteria and Indicators. Canadian Forest Service, Ottawa, Ontario, 22 pp. http://www.ccfm.org/ci/framain_e.html.
CCFM, 1998. National Forest Strategy 1998-2003. Canadian Forest Service, Ottawa, Ontario, 47 pp. http://nfsc.forest.ca/strategy.html.
Collier, R., B. Parfitt and D. Woollard, 2002. A Voice on the Land: An Indigenous Peoples' Guide to Forest Certification in Canada. National Aboriginal Forestry Assoc. and Ecotrust Canada, Ottawa, Ontario and Vancouver, BC, 106 pp.
Crown Forest Sustainability Act, R.S.O. 1994, c. 25.
Environmental Assessment Board, 1994. Reasons for decision and decision Class Environmental Assessment by the Ministry of Natural Resources for timber management on Crown lands in Ontario. Ontario Ministry of the Environment, Toronto, Ontario, 561 pp.
Forest Act, R.S.Q. 1996, Chapter F-4.1. http://www.canlii.org/qc/sta/f4.1/whole.html.
Grand Council of the Crees (Eeyou Istchee), 2002. New agreement signed. http://www.gcc.ca/gcc/newagreement/agreement_index.htm.
Haida Nation v. British Columbia (Minister of Forests)  2 C.N.L.R. and  4 C.N.L.R.
Lawrence, S. and P. Macklem, 2000. From consultation to reconciliation: Aboriginal rights and the Crown's duty to consult, Can. Bar Rev. 79: 252.
MRN, 2001. Project - Quebec's Consultation Policy on Orientations for the Management and Development of the Forest Environment. http://www.mrn.gouv.qc.ca/forets/consultation/consultation-gestion.jsp
1999 Ontario Forest Accord: "A Foundation for Progress", March 1999. Queen's Printer, Toronto, Ontario. http://www.mnr.gov.on.ca/mnr/oll/ofaab/accord.html.
Ontario Ministry of Natural Resources, 1996. Forest Management Planning Manual for Ontario's Crown Forests. Queen's Printer, Toronto, Ontario. http://ontariosforests.mnr.gov.on.ca/fmpoverview.cfm.
OMNR, July 2002. A Review by the Ministry of Natural Resources Regarding the Class Environmental Assessment for Timber Management on Crown Lands in Ontario "MNR's Timber Class EA Review". http://ontariosforests.mnr.gov.on.ca/timbereaoverview.cfm.
OMNR, 2002. Northern Boreal Initiative: A Land Use Planning Approach. http://www.mnr.gov.on.ca/mnr/nbi/index.html.
Québec Secrétariat aux affaires autochtones, 2002. Summary of the government's guidelines concerning Aboriginal affairs. http://www.mce.gouv.qc.ca/w/html/w1310003.html.
R. v. Sparrow,  3 C.N.L.R. 160 (S.C.C.).
Sharvit, C., M. Robinson and M.M. Ross, 1999. Resource developments on traditional lands: The duty to consult. Canadian Institute of Resources Law, Calgary, Alberta, 31 pp.
Smith, P., V. Peachey, R. Burkhardt, S. Teitelbaum & P. Perreault, 2000 draft. Building relationships among forest stewards: Principles for meaningful consultation with Aboriginal Peoples on forest management in Canada. National Aboriginal Forestry Association, Ottawa, Canada and Forest Stewardship Council Canada, Toronto, Ontario.
1 Canadian Institute of Resources Law, University of Calgary, Calgary, Alberta, Canada. [email protected]
2 The terms "Indigenous" and "Aboriginal" are used interchangeably and "First Nation" in reference to a registered status Indian community under the Indian Act. "Aboriginal" is used in Canada's Constitution Act, 1982 defined as including "Indians, Inuit and Metis." "Indigenous" is the most accepted international term. Capitals denote nationhood and plural on people refers to more than one Indigenous nation. "First Nation" is also the term of choice for many Canadian Aboriginal communities.
3 These principles were first drafted for Smith et al., 2000.