|
In Canada, the duty to consult and accommodate with Aboriginal peoples arises when the Crown contemplates actions or decisions that may affect an Aboriginal person's Aboriginal or Treaty rights.〔Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, 3 SCR 511 at paras 14, 18 and 20; R. v Van der Peet, () 2 SCR 507 at para 31; Delgamuukw v British Columbia, () 3 SCR 1010 at para 186; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69 at para 51.〕 This duty arises most often in the context of natural resource extraction such as mining, forestry, oil, and gas. It is very difficult to practically separate the duty to consult and accommodate because consultation may lead to the fulfillment of the duty to accommodate 〔R v Marshall, () 3 SCR 456 at para 22; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, 3 SCR 511 at para 47.〕 and consultation is meaningless if accommodation is excluded from the outset.〔Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, () 3 SCR 388 at para 54.〕 As such, the two are intertwined and must be addressed together. The broad purpose of the duty to consult and accommodate is to advance the objective of reconciliation of pre-existing Aboriginal societies with the assertion of Crown Sovereignty. This duty flows from the honour of the Crown and its fiduciary duty to Indigenous peoples.〔Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, 3 SCR 511 at paras 14, 18 and 20; R. v Van der Peet, () 2 SCR 507 at para 31; Delgamuukw v British Columbia, () 3 SCR 1010 at para 186; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69 at para 51.〕 The obligation to provide consultation and a decision-making process that is compatible with the honour of the Crown is embedded in Section Thirty-five of the ''Constitution Act, 1982'' and Treaties. In a Treaty context, the duty to consult serves to remedy “a procedural gap” in the Treaty.〔CW Sanderson, K Bergner & MS Jones, “The Crown’s Duty to Consult Aboriginal Peoples: Towards an Understanding of the Source, Purpose, and Limits of the Duty” (2011-2012) 49 Alta L Rev 821 at 824. See also Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, () 3 SCR 388 at paras 30 and 33.〕 The Supreme Court of Canada has acknowledged that there are gaps in the texts of historical numbered treaties. This means that the oral negotiations surrounding treaty negotiations are necessary to fully understand the rights and obligations to which treaties give rise. For example, the Supreme Court of Canada has stated that obligations arising from historical treaties encompass an oral promise that “the same means of earning a livelihood would continue after the treaty as existed before it.” The Court further stated that “a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity. Continuity respects traditional patterns of activity and occupation.”〔Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, () 3 SCR 388 at paras 47-48.〕 Therefore, orally negotiated historical treaties give rise to rights go beyond the right to hunt, fish and trap to include a right to maintain its traditional and cultural way of life as well as their traditional forms of economic activity. The Crown constitutes both the Federal and Provincial governments.〔Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 4.〕 Therefore, the level of government contemplating an action or decision has the responsibility to consult and accommodate. Although in many provinces it is industry proponents that consult with Aboriginal rights holders, the ultimate substantive duty to ensure proper consultation and accommodation lies with the Crown; while procedural aspects can be delegated to other levels of government or to industry proponents, the honour of the Crown itself can never be delegated.〔Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, 3 SCR 511 at para 53.〕 == Triggering the duty == The Supreme Court in ''Haida Nation v. British Columbia (Minister of Forests)'' created a three part test that, if met, gives rise to the duty to consult and accommodate on the part of the Crown.〔Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, 3 SCR 511 at para 35.〕 First, the government has a real or constructive knowledge of a right. This tends to be less of an issue in the context of treaties that establish clear rights. However, some historical treaties are unclear. There has been much litigation over the content of the rights in the Peace and Friendship Treaties negotiated in the Maritimes in the mid-eighteenth century, which culminated in the ''R. v. Marshall'' decisions. Canadian courts have sometimes viewed the duty to consult differently depending on whether it involves infringing Aboriginal rights or the Crown’s exercise of a right under a Treaty.〔Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, () 3 SCR 103 at para 119.〕 The second factor required to give rise to a duty to consult and accommodate is that a government action or decision relating to land and/or natural resource management within the Indigenous group’s traditional territory is contemplated. Traditional territory includes reserve land, land subject to aboriginal title, and territory that the Indigenous group considers to be its traditional lands. The third factor required to trigger a duty to consult and accommodate is that the government’s decision has the potential to adversely impact the continued existence of a Treaty or Constitutional right. Courts are very clear that when reviewing evidence, they must take a “generous, purposive approach to (whether there is a potential adverse impact ).”〔Rio Tinto Alcan Inc v. Carrier Sekani Tribal Council, 2010 SCC 43, () 2 SCR 650 at para 46. See also Haida, supra note 2 at para 17, and Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at paras 32, 34-38, 41, 42, 48 and 50.〕 However, speculation is not enough to constitute “potential” adverse impact. A court may consider adverse impacts as speculative if there is a lack of evidence or evidence does not clearly demonstrate an adverse impact. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「duty to consult and accommodate」の詳細全文を読む スポンサード リンク
|