The first principle identifies a series of aims of a consultation process, namely “building positive relations, reconciling differences, and avoiding confrontation”. We can agree that these are laudable principles, but, are they the sole principles? Are they even the correct principles? To satisfy ourselves about the adequacy of these proposed principles we looked first to our laws. We also considered the law of Canada.

Algonquin law provides that we must treat each other with respect, that we must speak honestly and truthfully, that we must listen and consider other peoples’ perspectives and opinions. We must keep the peace. We also strive to reach a consensus when faced with differing opinions. We have obligations to protect the environment and care for our families. We have a duty to help others in need and share our bounty and to not take more than we need. These are not all our laws, but these are some of the principles we will bear in mind in our relations with others. To the degree that the aims outlined in paragraph one match these objectives, we are in agreement.

But we must also reflect on Canadian law to gather clues about the interpretation the Ministry may apply to the aims identified in the Discussion Paper. The concept of “reconciling differences” has been interpreted in different ways in the courts and so we are concerned about the interpretation the Ministry may apply.
In R. v. Sparrow the Supreme Court of Canada (S.C.C.) found that federal powers had to be reconciled with federal duties. Regulation of an Aboriginal right has to be justified, the Court reasoned, and set out a test for determining when the Crown might defensively abrogate Aboriginal rights and title.
The special trust relationship and the responsibility of the government vis-à-vis [A]boriginals must be the first consideration in determining whether the legislation or action in question can be justified… The objective is… to guarantee that those [conservation and management] plans treat [A]boriginal peoples in a way ensuring that their rights are taken seriously.

In R. v. Van der Peet the S.C.C. found that s. 35(1) of the Constitution Act, 1982,
provide[s] the constitutional framework through which the fact the [A]boriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown…the [A]boriginal rights recognized and affirmed by s.35(1) must be directed towards the reconciliation of the pre-existence of [A]boriginal societies with the sovereignty of the Crown.

We interpret the phrase, “reconciling differences” to mean finding ways to ensure that both Aboriginal and non-Aboriginal society flourish on terms that are acceptable within their unique cultural milieu. We must find ways to live together that do not necessarily, a priori demand the sublimation of one culture to the demands of another. This is a laudable goal and one which we are prepared to work with the Ministry to achieve.

To the degree a consultation process can achieve this aim, we support it. But we do not know what process the Ministry may have in mind. The Ministry is asking us to comment on these aims in a vacuum. Outlining a series of aims is certainly a worthwhile starting point, but until we discuss the process that we will use to achieve these aims, they remain nothing but words on a paper. The only way we can determine whether these goals can be met is to consider the Ministry’s mandate and our past experience with its implementation. This will give us clues not only to the viability of a process the Ministry may develop but also the interpretation the Ministry is likely to use in defining its duties.
The Ministry of Northern Development and Mines has two primary functions. The first, as defined under The Ministry of Northern Development and Mines Act, stipulates that the Ministry is “to co-ordinate the activities of and initiate policies and programs for the Government in Northern Ontario” . This has no application to the present issue of consultation on mining activities, except to the degree to which mineral development forms a part of the Northern Ontario policies and programs. The second function of the Ministry is more apropos. The Ministry website stipulates that it “supports the mineral industry by providing it with valuable information about the province's geology. It also delivers and administers Ontario's Mining Act to improve the investment climate for mineral development.”
If the conflict of mandate is insufficient to demonstrate bias, the text of the Discussion Paper further underscores the mind set of the Ministry. The text focuses on Ontario’s “position as a leading mining jurisdiction” . The Appendix – Mineral Sector Overview, lauds the contribution of the mining industry to economic development and bemoans the high risk involved in mineral exploration. It applauds the economic contribution of the mining industry to the Ontario economy and way of life and the employment opportunities available. In fact, it is only in this Appendix that we find any suggestion of the value of mining and mineral development to Aboriginal peoples, this being the

We must also consider the Ministry’s behaviour toward Aboriginal peoples to determine whether it has met its obligations in the past and can be presumed to do so in the future. Certainly our experience to date is that it has not. The Ministry has authorized the exploration for and exploitation of minerals in our territory without consultation, despite the fact that we are currently in the middle of land claim negotiations. We are reluctant to believe that the Ministry cannot amend its ways; we must await further evidence before we can presume that it has.

Without proof that the Ministry has any appreciation of the perspectives of Aboriginal peoples and has demonstrated through its actions that it is prepared to consult in a meaningful way with Aboriginal peoples on mineral development, Aboriginal peoples cannot help but feel that any process led by the Ministry will be antipathic to our interests. While we must assume the Crown will act honourably in its relations with Aboriginal peoples, in our view there is a prima facie conflict of interest between the Crown’s duty to reconcile its activities with Aboriginal rights and title and the Ministry’s mandate. Failure to acknowledge and address this conflict will continue to undermine relations between the Crown and Aboriginal peoples. Building trust with Aboriginal peoples demands the Provincial Government establish consultation mechanisms that attract the confidence of Aboriginal peoples. At present, the Ministry’s bias towards the mining industry and mine development do little to recommend it as an impartial arbiter between constitutional rights and economic interests. We shall have to reserve judgment on the aims outlined in paragraph one of the Discussion Paper until we have a better understanding of the interpretation the Ministry will put on terms such as reconciliation and have an opportunity to review any process the Ministry proposes to implement to achieve the stated objectives.

Honour of the Crown

With respect to paragraph two, we agree that consultations must be conducted in good faith and openness. In fact, this is part of the legal obligation imposed on the Crown . The Crown always has a duty to act honourably and must avoid “even the appearance of ‘sharp dealing’ . This “is not a mere incantation, but rather a core precept that finds its application in concrete practices.” The Haida were in a similar situation to the Algonquin in that neither they nor we have a treaty with the Crown. Therefore, our rights as outlined in the Royal Proclamation of 1763 remain valid. In the Haida decision, Chief Justice McLaughlin found, “[t]he honour of the Crown requires that these [Aboriginal] rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the

We expect that the Crown will act honourably in its relations with Aboriginal peoples and thus we support the provision in paragraph two, but feel that more detail is required to ensure we share similar understandings of what duty of care is expected and how this duty will be expressed in our dealings with the Ministry.

Accommodation

We agree with paragraph three where it notes that “consultation should be conducted with the objective of avoiding adverse impacts on asserted or established Aboriginal or treaty rights” . However, we are concerned about the second sentence, “[w]here avoidance is not possible, consultation will be conducted with the goal of mitigating such impacts”. We are uncertain about the interpretation the Ministry might place on the phrases “where avoidance is not possible” and “mitigation”.

Our first concern is that the Ministry is prepared to exercise its bias toward mineral development. As noted above in the discussion about aims, the Ministry’s mandate and the Discussion Paper itself identify a strong bias on the part of the Ministry in favour of mineral development. We are concerned that economic and political interests will encourage the Ministry to define its obligations in such a way as to ensure the avoidance of impact on our rights is never possible. This is unacceptable.

This speaks directly to our concern about the constitutionality of the Mining Act itself. As currently drafted, the Mining Act requires no consultation with Aboriginal peoples for any activities pursued under the Act. The Act contains no reference to an obligation to consult when a mine claim is surveyed, staked or recorded, during preliminary or advanced exploration, when the Crown approves a lease or patent, nor approval of a closure plan. In fact, the only concession to Aboriginal interests in the Mining Act is the prohibition on staking claims that are Indian reserve lands.

The Mining Act currently provides a right of “free entry” to prospectors, allowing them the right to stake mining claims on “any land open to prospecting” . This includes any Crown land and any lands in which the Crown reserved mineral or mining rights not already subject to a mining claim or land not otherwise withdrawn by the Crown.

The Ministry defends the “free entry” system as necessary “[g]iven high risks, costs, and globally competitive nature of mineral exploration” and the need for “security of mineral

- “The right of a licensed prospector to enter most lands containing Crown owned minerals in order to undertake mineral exploration
- The right of the prospector to acquire the exclusive rights to prospect a parcel of land by staking and recording a claim
- The exclusive right of the claim holder to carry out further exploration and development within the claim area
- The right of the claim holder to obtain a mining lease, which gives the holder a legal right to the Crown-owned minerals on the site and is required to undertake mineral production.”
Notably, “free entry” allows access by prospectors to virtually all property, private or otherwise. In addition, there is no obligation on prospectors to consult with the Crown or Aboriginal peoples when locating or registering a claim and prospectors hold an absolute right to acquire a mineral lease”
The “free entry” system limits the Crown’s capacity to protect Aboriginal and treaty rights as required under section 35 of the Constitution Act, 1982. As prospectors are granted exclusive prior rights and the discretion of the Crown is fettered by operation of elements of the Mining Act, the Crown in right of Ontario creates conflicting legal obligations to prospectors and Aboriginal people. As section 35 of the Constitution accords prior rights to Aboriginal peoples, the degree to which the Mining Act purports to extend rights to prospectors that need not be reconciled with Aboriginal title and rights must be unconstitutional. While consultation is an element of the conditions the Crown must observe in meeting its legal obligations for Aboriginal peoples, the Crown must reserve for itself the discretion necessary to accommodate Aboriginal rights and interests. “Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations.” An Act which fetters this discretion cannot be saved by a consultation process that is restricted a priori. “Consultation that excludes from the outset any form of accommodation would be meaningless.”

Therefore, if the Ministry presumes to maintain the Mining Act in its current form, we cannot agree with the proposed principle stated in paragraph three of the Discussion Paper.

We also have concerns about what the Ministry may contemplate as adequate mitigation, in particular the role and value of financial compensation. While we recognize that

The Court has found, and indeed it has been practice, that financial compensation can reimburse Aboriginal peoples for infringement on their Aboriginal rights. While financial compensation will no doubt form a part of any final agreement with the Crown with respect to the use of our lands, we must insist that some of our lands remain free of modern Western economic development. We must retain the capacity to pursue our traditional activities, including traditional economic activities on our lands. We cannot and will never agree to circumstances where we see our children and grandchildren

Indeed, we expect the Crown to heed its obligation to accommodate our interests rather than assume that our interests can be bought out.

When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation,…”

In Mikisew, Justice Binnie cites Finch J.A. (now C.J.B.C.) in Halfway River First Nation at paras. 159-60, “The Crown’s duty to consult imposes on it a positive obligation to … ensure that their [Aboriginal peoples] representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action. [Emphasis added.].”
Therefore, with respect to principle three, we require further clarification from the Ministry about how it will meet the objective of protecting Aboriginal traditional knowledge in the context of mitigating damage to our rights and under what circumstances financial compensation will form the basis for accommodation. Even more critical, however, is an amendment to the Mining Act to ensure it accords with Constitutional obligations of consultation.

Therefore, with respect to principle three, we require further clarification from the Ministry about how it will meet the objective of protecting Aboriginal traditional knowledge in the context of mitigating damage to our rights and under what circumstances financial compensation will form the basis for accommodation. Even more critical, however, is an amendment to the Mining Act to ensure it accords with Constitutional obligations of consultation.

Needs and Capacity

The fourth proposed principle is likewise problematic. This principle purports to respect the needs of Aboriginal peoples and the mining industry. We are uncertain whether the Ministry is referring here to the needs of Aboriginal peoples and industry in conducting the consultation or reflecting their needs in the eventual outcome of the consultation.

With respect to the needs of Aboriginal peoples in a consultation process, we would be happy to outline in detail to the Ministry capacity requirements we may have with respect to conducting consultation, including time, information, and financial and human resources. We would do so in any case in the context of any particular consultation process contemplated.

If the Ministry is in fact referring to balancing the needs of Aboriginal peoples and the mining industry with respect to the outcome, we reiterate our concerns about the Ministry’s bias noted above with respect to aims and accommodation. We expect that the guidelines will provide a forum where the Crown turns its mind to protecting the constitutional rights of Aboriginal peoples. In our view, consultation is not a question of balancing Aboriginal rights and economic interests. The rights of Aboriginal peoples are constitutionally protected rights and are thus are always of a higher order than any interests of a mining company. The degree to which the Courts have attempted to elevate economic interests of non-Aboriginal peoples to a plane equal to that of constitutionally protected rights is nothing more, in our opinion, than the Courts having not yet thrown off the cloak of colonialism. In our view, the consultation process can only direct itself to reconciliation in the context of our rights. Activities sanctioned by the Crown must, in our view, be reconciled with our rights. Consultation processes must therefore be devoid of procedural bias that predetermines outcomes through the application of perceived political value according respect to the mining industry beyond the Constitutional rights of Aboriginal peoples.

Veto

Paragraph five is clearly responding to pronouncements of the Courts with respect to the relative position of the parties to a consultation. We note the Delgamuukw decision that makes it clear that at times the “full consent” of Aboriginal peoples is required . From our perspective this constitutes a “veto”. We note further that the Delgamuukw decision made reference to the varying nature and scope of the duty to consult. In that case, Chief Justice Lamar provided the example of hunting and fishing regulations where full consent maybe required. We would argue that mining activities are at least as severe an impact on our Aboriginal rights as the examples provided in Delgamuukw. This is particularly true in the case of uranium mining, which has the potential to despoil large tracts of our land by releasing highly dangerous and long lasting toxins making impossible the common uses to which we put the land, such as for hunting, fishing, drinking water, and gathering of medicines. We expect the Crown to seek our consent when contemplating activities that fundamentally denude us of the meaningful exercise of our rights.

Information and Time

We support the principles outlined in paragraph seven as being a necessary part of any consultation process. Relevant, timely and correct information is essential to informed decision making.

In light of our traditional forms of governance and decision making, the time available to review and digest information and reach community consensus on issues is a critical matter. We have an obligation in our traditions to reflect on the impact of our actions on future generations. This requires us to fully understand the intricacies of an issue and examine long term consequences. We understand, on the other hand, that modern business practice is to proceed with matters as quickly as possible so as to not lose market advantages. We cannot allow ourselves to be pressured by a ticking clock into making potentially disastrous decisions. Beyond this general principle, we will be better able to define necessary timeframes in the context of individual circumstances.

Receiving relevant information is likewise critical to the completion of a successful consultation. We expect to have access to information that is essential for informed decision making.

That said, just as industry is likely to identify some information off bounds in a consultation process owing to proprietary interest, we will likewise have to restrict access to some of our information on the same grounds. We are speaking here of traditional knowledge. Governments have required Aboriginal peoples to provide information on the impact of proposed activities through consultation and environmental assessment processes. In some instances, this information is of a sensitive and sometimes sacred nature. Some of our knowledge has value that could be usurped by those not entitled under our laws to use or profit from this knowledge. Some knowledge too has the potential to cause harm to those not skilled in its use. While the information we are prepared to share will depend on the issues at stake in a consultation process, we must be satisfied that any intellectual property rights attached to the information we do share will be retained by our communities. This is particularly of concern when the Crown is involved, as policies of public access to information at times demand the unconditional release of information. We must be satisfied that information we share on a confidential basis will be treated as such by the Crown and that disclosure in the context of a consultation does not constitute placing this information in the “public domain”. This is a complicated matter that deserves independent study, but we expect that consultation processes established by the province will contain provisions to protect our traditional knowledge from abuse and misappropriation.

Scope of Duty

We understand that the S.C.C. has identified a range in the duty to consult . We expect to have an opportunity to provide input into the decision about what depth of consultation may be required in individual cases. As noted above, we suggest that proposals for uranium exploration and mine development require a very deep consultation, including the requirement to obtain our consent.

We are further concerned about the ability of the Ministry to define terms such as “potential adverse effects”, “nature of activities involved” and “strength of the claim to an asserted Aboriginal or treaty right” in a manner that does not constitute bias to our interests. These are not terms whose definition is readily apparent; they require interpretation and application to a set of agreed facts. We are not prepared to allow the Ministry to define these terms in isolation.

Furthermore, any interpretation that promotes colonialism and the assimilation of Aboriginal peoples will be rejected outright.

Additional Principles

While this concludes our comments on the principles outlined in the discussion paper, we would like to comment on additional principles not contained in the discussion paper that we believe should be included. Specifically we refer to the comments by Chief Justice McLaughlin in Haida. She notes with favour the New Zealand Ministry of Justice’s Guide for Consultation with Mäori (1997) (at pp. 21 and 31):

Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed . . . .

. . .

. . . genuine consultation means a process that involves . . .:

We agree that these are worthwhile elements to include in a consultation process.

Roles and Responsibilities

We have touched on this issue to some degree in the discussion above regarding parties to a consultation. However, further issues are raised in the section of the Discussion Paper intended to help clarify the role of industry, government, and Aboriginal communities in a consultation process. We do not intend to undertake a point by point review of this section of the Discussion Paper; instead we provide some additional thoughts or raise issues requiring further clarification.

Government

The Discussion Paper notes at page 8 that MNDM will consult with Aboriginal communities at “key stages” in the mining sequence. We require further information about the stages the government is considering. We expect, at a minimum, that consultation will be required prior to opening an area to mining, recording a mining claim and issuance or renewal of a mining lease.

It is not clear from the Discussion Paper whether government will gather information about potentially impacted rights directly from the potentially affected Aboriginal community or not. In light of the unique cultures of Aboriginal peoples across Ontario and Canada, it is not acceptable in our view to seek information on the impact on Algonquin rights from the Cree or the Mohawk, for example, or to extrapolate from experience in one consultation involving different Aboriginal peoples or even the same affected Aboriginal peoples but within a different context. We expect that the government will speak directly with affected Aboriginal peoples about the potential impact of each activity on their rights.

The notion that the government will delegate consultation to a third party was addressed squarely by the Supreme Court in Haida. It is solely the duty of the Crown to conduct

We expect to engage in consultation with those who hold decision making authority within the provincial government. We will not waste our time negotiating with those who do not have the authority at the consultation table to conclude an agreement. We also expect those who participate at the consultation table to be familiar with the rights and interests of Aboriginal peoples and to be respectful of our customs and traditions.

Project Proponent

This section of the Discussion Paper suggests that the Crown has predetermined what role a project proponent will have in the consultation process. This is particularly evident in the proposal that the project proponent will be responsible to “document the issues and concerns raised by the community and identify whether and how concerns were addressed”. We take exception to this as a necessary part of the consultation process. As stated above, we expect to undertake consultation with the Crown. This means that for the most part industry is not even at the table. Suggesting that industry will hold the duties noted above implies a greater role for industry than we are prepared to accommodate.

In our view, the sole role of industry is to provide necessary information about their plans and processes sufficient to allow for informed decision making. The duty here would be to provide information sufficient to allow the Aboriginal community to be “fully” informed, which may go beyond the standard of “reasonably” informed . Furthermore, in this regard, it is our decision as to whether we have received sufficient information, not that of industry or the Crown.

We also wish to raise concerns about the reference to “chief and band council” . Neither Ardoch Algonquin nor Shabot Obaadjiwan First Nations are Indian Act bands. As such, we would not necessarily fall within the contemplated meaning of “chief and band council”. Nevertheless, as Aboriginal peoples holding title to parts of Eastern Ontario, we have Constitutional rights that must be respected. We expect to be included in any consultations regarding activities in our traditional territories.

As an Aboriginal community impacted by mineral development in our traditional territories we stand ready to engage in meaningful consultation with the provincial government. However, we reserve the right to seek negotiations with the federal government on a prior basis in order to resolve matters affecting our title and rights under the Royal Proclamation, 1963 on a government to government or nation to nation basis.

We are happy to share our views on ways in which a project may impinge on our rights and interests to the degree that the government can issue assurances regarding intellectual property rights as discussed above. We are also prepared to respond to reasonable proposals from the Ministry for accommodating our interests. In addition, we will consider proposals from industry to the degree that they might extend accommodation outside the context of the consultation, but at no time do we feel obliged to respond to industry as a party negotiating accommodation within the context of the consultation. Any apportionment of costs or responsibilities between the Crown and industry is a subject for their separate discussions. We are prepared to meet with and reach agreement with industry as our neighbours. We are not anti-development. However, the relationships that we may develop with industry are separate and distinct from our relationship with industry in the context of consultation.

Other Matters

We agree with the proposal to amend the Mining Act to make consultation obligations more clear. This must include amendments to remove the fetter on the Minister’s discretion to issue a mining lease. At a minimum, the Mining Act must be constitutional.

We also recommend amendments to the mandate of the Ministry to make it clear that the Ministry has an obligation to Aboriginal peoples in the context of its efforts to support the mining industry.

We reserve the right to be consulted on consultation processes. Developing a consultation process based on comments received from the public on a discussion paper or in committees or working groups established by government is insufficient to meet the duty owed by the government to consult on consultation. We expect to engage directly with the provincial government in determining a consultation process that will apply in any particular circumstance. We welcome the proposal to negotiate a consultation protocol and will be seeking funds to facilitate our participation in such a process.

Ontario, 2007, Toward Developing an Aboriginal Consultation Approach for Mineral Sector Activities: A Discussion Paper, Winter 2007
http://www.mndm.gov.on.ca/MNDM/aboriginal/pdf/discussion_paper_e.pdf accessed September 4, 2007 (Government of Ontario, Toronto)

Ontario, 2006, Draft Guidelines for Ministries on Consultation with Aboriginal Peoples Related to Aboriginal Rights and Treaty Rights
http://www.aboriginalaffairs.gov.on.ca/english/news/draftconsultjune2006.pdf
accessed September 4, 2007 (Government of Ontario, Toronto)

West Coast Environmental Law, 2004, Mining's Privileged Access to Land: A Free Entry Backgrounder, http://www.wcel.org/wcelpub/2004/14095.htm, accessed Sept 4, 2007