AFN NAFA Forest Forum Presentation Mar 29 11

7/29/2019 AFN NAFA Forest Forum Presentation Mar 29 11

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Aboriginal & Treaty Rights and ProvincialForestry Management RegimesBy Russell Diabo, Wolf Lake First Nation, Policy Advisor


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Haida/Taku Legal Principles

a) the Crowns duty of consultation andaccommodation is founded not in a fiduciaryduty as had been held by the B.C. Court ofAppeal, but in the honour of the Crown (16,Haida);

(b) the duty to consult arises when the Crown

has knowledge, real or constructive, of thepotential existence of an Aboriginal right or titleand contemplates conduct that mightadversely affect it (35, Haida);


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Haida/Taku Legal Principles

(c) the scope of the Crowns duty is proportionate to apreliminary assessment of the strength of the assertedAboriginal right or title and to the seriousness of thepotentially adverse effect upon the right or title (39,Haida);

(d) the consultation must be meaningful, in good faithand with a willingness of the C rown to make changesbased on the information that emerges during the

consultation process (29, Taku River Tlingit);

(e) sharp dealing is not permitted, but mere hardbargaining will not offend the right of the Aboriginalgroup to be consulted (42, Haida);


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Haida/Taku Principles

(f) there is no duty to reach agreement andAboriginal groups do not have a veto power overwhat can be done with land claimed by them;

rather, it is a process of balancing interests, of giveand take (10 and 48, Haida); and

(g) where accommodation is required in makingdecisions that may adversely affect an asserted

Aboriginal right or title, the Crown must balanceAboriginal concerns reasonably with the potentialimpact of the decision on the asserted right or titleand other societal interests (50, Haida and 42,

Taku River Tlingit).


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Burden of Proof on First Nations

It is not only Crown governments and third partiesthat have responsibilities and obligations as a resultof these legal principles. These legal principles alsoplace a burden on the First Nations to get organizedinternally to manage consultation requests andnegotiate accommodations from the Crowngovernments, industry and other third partiesoperating on a First Nations traditional territory untilthe Aboriginal Rights, Title or Treaty issues can beresolved.


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Post Haida/Taku Burden of Proof

The Haida decision means that the Crown has tohave knowledge of any First Nations asserted orpotential claims and concerns about serious

infringements or irreparable harm that is or willbe caused by current or future provincially (andfederally) authorized activities or plans that affectAboriginal lands and resources on traditional

territory, pending the reconciliation of Aboriginaltitle and/or Treaty rights with the Crowns assertionof title, through a treaty, agreement or courtdetermination.


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Assessment of Rights vs. Impacts

First Nations need to set up a consultation trackingsystem.

Connected to the consultation tracking system should bean information management system that includes a GIS.

First Nations need to develop an internal consultationprocedures process and procedures.

First Nations need to develop an external consultationprotocol process and procedures.


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5. ACTS


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Information Management

researchers

governmentcommunity knowledge

industry

interest groups

academics }maps

letters

reports

databases

stories

decision

interpretation

}


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Logical Framework

Traditional Ecological

KnowledgeSocial Customs

Toponymy

ABL-FECSensitive Area Mapping

Measures to HarmonizeElders Field Trip

Projects:

PROGRAM

INDI GENOUS KNOWLEDGE

Data Compilation

Digitization of EcoforestryDataCut Plan Map Digitization

Synthetic Map ProductionBuffer Zone Study

Sub-Program: FORESTR Y

Projects:

Aerial Moose Inventory

Wildlife Data CompilationHabitat Supply Analysis& Modeling

ABL Harvest StudyMoose Management

Strategy

Sub-Program: WILDLIFE

Projects:

PROGRAM

SUSTAINABLE DEVELOPMENT

OF NATU RAL RESOURCES

Regional Socio-Economic

StudyABL Socio-Economic StudyLegal Framework Study

Projects:

PROGRAM

ECONOMIC/SOCIAL

DEVELOPMENT

TRILATERAL AGREEMENT

MITCHIKANIBIKOK INIK


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Indigenous Knowledge ProgramTo document Algonquin ecological & social

knowledge for incorporation into the IRMP, &thereby facilitate harmonization of Algonquin &

non-Algonquin land-use regimes consistent with

the interest of the Algonquins of Barriere Lake.

MITCHIKANIBIKOK INIK


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MITCHIKANIBIKOK INIK SAS Mapping

Wood

Occupancy

Moose YardsSpawning Areas

Sacred Areas

Burial Sites

TobaccoMedicinal Plants

Sugar Bush

Roots

LEGEND


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Areas of ConcernManagement Strategy

ABL Areas of Concern (SAS)

Algonquin traditional occupancy and use sites documented during Phase I -

Strategies & Prescriptions developed by IRMP Technical Team inconsultation with ABL for Phase II IRMP planning.

Ministry of Natural Resources, Wildlife and Parks Guidelines& Land Affectation

Quebec Forest Act


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FAPAQ & MRN Affectation Zones


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ABL Areas of Concern (SAS)


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ABL Areas of Concern (TMA 1)VALUE NO. &/OR

AREA (ha)PRESCRIPTION

Burial Sites 4 No forestry operations within AoCAbsolute buffer of 60m

CeremonialSites

1 No forestry operations within AoCAbsolute buffer of 100mRestriction on forest operations in area during gatheringsViewshed analysis as required

HeritageSites

1 Absolute buffer of 60mModified harvest within 400 m; harvest strategies determined throughconsultations with ABL

OccupancySites

12 permanent19 tent sites

5-yr harvest exclusion buffer of 2km around permanent sites5-yr harvest exclusion buffer of 5km around settlements (5+ cabins)Absolute buffer of 60m


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ABL Areas of Concern (cont.)

TMA 1

VALUE NO. &/OR

AREA (ha)

PRESCRIPTION

SacredAreas

5 431 ha No forestry operations within AoCAbsolute buffer of 60mVisibility analysis where required

Spring

Water

6 Harvest exclusion

Absolute buffer of 60m

MedicinalPlantCollection

23 556 ha Measures to Harmonize as requiredMaintain 560 ha of Algonquin designated collection areasthroughout 20-year planning period

RootCollection

597 ha Maintain 597 ha of Algonquin designated collection areasthroughout 20-year planning period

SpecialtyWoods

23 2,211ha

Measures to Harmonize for specific sitesMaintain 1,434 ha of Algonquin designated collection areasthroughout 20-year period


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19

Public

LandDesignations


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Conclusions

Provinces developing consultation processes &procedures, First Nations need to do the same.

First Nations need to collect cultural, historical andcurrent use data and natural resource inventory data.

First Nations need to assess how much territory has beentaken up and what is left.

The consultation/accommodation processes will be ineffect for years, likely decades.

AFN NAFA Forest Forum Presentation Mar 29 11

Documents

Transcript of AFN NAFA Forest Forum Presentation Mar 29 11