Sludge Watch ==> First Nations - Consultation on Water Issues

[maureen.reilly at sympatico.ca]

Sludgewatch Admin:

In some jurisdictions of the US and Canada First Nations are called 
Aboriginal Communities, Indians, or Tribal Nations.  But no matter what the 
nomenclature, the people who lived in these lands, and still live in these 
lands, have been poorly treated by the governments established by the 
invading Europeans who now govern Canada and the United States.

Many First Nations groups still have rights and claims over the land, air, 
and water of North America.  This is a legal fact and must be addressed in 
proposed legislation and land use issues.  Below is part of a consultation 
document from the Saugeen Ojibway Nations in regard to Ontario Source Water 
Protection Planning.  I have copied the last section of the report on 
consultation.  Attached, you can find the full 12 page report.

This is just a reminder - 'we - in this case the Ontario or Canadian 
government -  don't own all these resources...and we must plan in 
cooperation with the First Nations who have not extinguished their rights to 
these resources.

Miigwetch
......................................................................................................

How to engage First Nations in source water protection planning


The way forward with First Nations is through the process of consultation. 
The Supreme Court of Canada has marked the trail; all that is needed in 
Ontario is the political will to follow it. The Crown has been doing a great 
deal of talking about consultation. Ontario has even produced a set of 
guidelines for consultation with First Nations, although they actively 
avoided consulting with First Nations while they were developing them. And 
most of the talking has been with the Chiefs of Ontario and treaty 
organizations, in Toronto rather than with the First Nations who hold the 
rights and treaties and way of life that the Crown’s initiatives might 
infringe.

There are several problems with Ontario’s “Draft Guidelines for Ministries 
on Consultation with Aboriginal Peoples Related to Aboriginal Rights and 
Treaty Rights” (June 2006); here are a few:
•	They leave too much discretion for consultation up to bureaucrats within 
Ministries.
•	There is virtually no room for open discussion directly with First Nations 
to discover whether a Ministry has a duty to consult on a matter it is 
contemplating. Significantly, the Guidelines’ list of sources of information 
  to help Ministries decide if they have a duty to consult a First Nation 
does not include the First Nation itself.
•	There is plenty of room in the Guidelines for a Ministry to say to a First 
Nation: “We do not believe the matter we are contemplating will impact on 
your rights or claims, therefore we owe you no duty to consult.”
•	Land claims are barely addressed. Aboriginal title is, but it is framed as 
a “particular type of aboriginal right”,  a narrowly defined notion that is 
not compatible with First Nations ideas of Aboriginal title.

These failings will be a very real source of frustration and anger for First 
Nations in the next few years.

Beginning proper consultation is as easy as phoning up a First Nation, 
setting up a meeting in its traditional territories and sitting down to 
discover, in good faith, how that First Nation (or group of First Nations 
that share the same treaties and rights) might best take part in source 
water protection in their traditional territories. The Supreme Court did not 
say there would be no cost to the Crown, and indeed, First Nations will need 
funding to better understand and comment on water issues in their 
traditional territories. But the cost of not consulting properly with First 
Nations will be much greater.

The result of proper consultation may well be a separate agreement between 
the First Nation and the Crown that will govern how the First Nation takes 
part in source water protection planning. In the north, for example, where 
there are no Conservation Authorities, perhaps it should be the First 
Nations that are the source water protection planners.

It is important to consider what is and is not consultation. The Supreme 
Court of Canada is very clear that consultation must be done in good faith, 
directly with First Nations who hold the rights and treaties. It must be 
done in a timely manner, and the Crown must bring all relevant information 
to the table. The Crown must also inform itself on the rights, claims and 
concerns of the First Nation(s) they are consulting with on any matter. 
Consultation must be done in a timely manner at the strategic planning phase 
of a matter the Crown is contemplating. The Supreme Court has said much more 
than this and it would do well for Ministers and MPPs to inform themselves 
of what the law now is regarding proper consultation with First Nations.

Proper consultation is not expecting First Nations to use the same process 
as stakeholders. The unique constitutional position of First Nations as well 
as the Crown’s duty to consult raises First Nations above the status of 
stakeholder. The Crown’s duty to consult cannot be delegated to proponents 
or to any third party—including the Chiefs of Ontario.

We are very worried about an exchange between a member of the current 
Ontario government (MPP John Wilkinson, Parliamentary Assistant to Minister 
Laurel Broten) and Grand Chief Denise Stonefish of the AIAI (Association of 
Iroquois and Allied Indians) during hearings of the Standing Committee on 
Social Policy on August 22, 2006. Mr. Wilkinson produced a list of meetings 
between Ministers of the Environment Leona Dombrowsky and Laurel Broten and 
representatives of the Chiefs of Ontario and other Native organizations. 
These meetings were characterized as “consultations”. They are not.

In fact we know that Chiefs of Ontario representatives have consistently 
told representatives of the Ministry of the Environment that such meetings 
cannot be considered consultation because:
1.	they were not with First Nations who hold the rights and treaties;
2.	they are with a third party, the Chiefs of Ontario which cannot represent 
First Nations in consultations on anything.

For your information, we have stated on the record that no third party, 
including the Chiefs of Ontario, can consult on behalf of the Saugeen 
Ojibway Nations.



For more information:
David McLaren, Environmental Office Coordinator, Saugeen Ojibway Nations
RR 5 Wiarton ON N0H 2T0
519-534-4107
d.mclaren at bmts.com