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Posts Tagged ‘consultation’

First Nation in Ontario wins injunction against gold drilling; Court orders consultation

When citizens of the Wahgoshig First Nation spotted a drilling crew on their sacred burial site, they demanded to know what was going on.

The Wahgoshig, whose Algonquin reserve of 19,239 acres is near the Quebec border, say they were met with silence.

According to court records, the prospecting involves clearing 25 sq. metre pads, clearing forest, bulldozing access routes to the drilling sites and the transportation and storage of fuel and equipment.

The workers were from Solid Gold Resources Inc. that has a 200-square-kilometre prospect. The land they were on, says Wahgoshig band chief David Babin, is not part of the reserve but does include the traditional lands the Algonquins lived on for thousands of years.

Wahgoshig, a community of 250 people, protested to the Ontario government, which in turn told Solid Gold on Nov. 8, 2011, that before any more drilling occurs they must adequately consult with the band.

Solid Gold allegedly responded by bringing in a second drilling rig.

Last month, Ontario Judge Carole Brown ordered Solid Gold to stop activity on the site for 120 days. The injunction expires in May. Brown ordered Solid Gold and the government to use that time to properly consult and accommodate the concerns of Wahgoshig.

The ruling has implications for other resource projects on First Nations traditional land — including the $5.5 billion Northern Gateway Pipeline, a high-stakes bid to ship Alberta tar sands oil to China via a new pipeline across B.C. to the coast.

Judge Brown is mindful of Wahgoshig’s position that refusing to enjoin Solid Gold from its drilling will “send a message that aboriginal and treaty rights, including the rights to consultation and accommodation, can be ignored by exploration companies, rendering the First Nations’ constitutionally recognized rights meaningless.”

Solid Gold is appealing her decision. A hearing is scheduled for Feb. 29 at divisional court in Toronto.

Ontario’s Angus Toulouse, regional chief of the Assembly of First Nations, argues that the Constitution’s guarantee of aboriginal rights, and the United Nations Declaration on the Rights of Indigenous Peoples, require that aboriginal people have the right of free, prior and informed consent before any project that may affect their lands can proceed.

Solid Gold told the court it has “no legal responsibility or duty to consult, and that if there is such a duty, it resides in the Crown.”

Read more: http://www.thestar.com/news/canada/politics/article/1129591–ontario-first-nation-wins-injunction-to-stop-gold-drilling

So much for “consultation” with Indian tribes

The Seventh Circuit Bar Association Foundation (not to be confused with the federal United States Court of Appeals for the Seventh Circuit) is putting on a conference on the future of the Great Lakes.  http://www.7thcircuitbar.org/index.cfm

Regrettably, and sadly, the conference agenda does not include any Indians (as far as I can tell) or the official participation of any Indian nations and governments.

The purpose of the conference would seem to mandate the inclusion of native peoples and governments from Canada and the United States.

“A program examining the legal and policy issues facing the Great Lakes with 15 prestigious faculty from both the United States and Canada to present a binational perspective on the issues addressed.”

How about presenting a TRI-national perspective and including native governments?

I am currently researching and writing about the United States obligation to consult with Indian tribal governments and communities for any actions the US is considering undertaking that might impact Indians.

I will be comparing that U.S. duty of consultation with the much higher obligation imposed on nation/states under the United Nations Declaration on the Rights of Indigenous Peoples ”to obtain their free, prior and informed consent before adopting” measures that impact Indigenous Peoples.  See, for example, Declaration Articles 10, 11, 19. 29.

Federal consultation with tribal nations

Under several provisions of federal and international law, the United States has a duty to consult with tribal governments and Indian peoples before engaging in conduct or making decisions that might impact tribal rights and properties.

This is a very sore lpoint in the United States thta despite legal requirements, the U.S. and federal agencies often proceed to decisionmaking and actions that do impact tribal rights without prior consultation. Or, in many instances the federal bureaucrats consider that they have “consulted” with tribes when they tell tribes what the federal agency is about to do.

Similar problems exist in Canada according to this recent news report.

Indian Country Today wrote on May 30 about Kenneth Deer’s (Mohawk) comments to the Tenth Session of the United Nations Permanent Forum on Indigenous Issues.

Mr. Deer stated that Canada and the U.S. are bound under a clause in the United Nations Declaration on the Rights of Indigenous Peoples to get “prior and informed consent” from indigenous peoples when it comes to activities on their land and person.

Deer charges that both countries are trying to wiggle out of that duty in at least two areas—genetic resources and mining.

In fact, at a working-group session for the Commission on Sustainable Development, Canada, Australia, New Zealand, and the U.S. asked that the words “free, prior and informed consent” (FPIC) regarding indigenous and local communities be deleted when it came to mining. See Earth Negotiations Bulletin.

Deer, the Mohawk Nation representative to the Permanent Forum, also noted the attempted undermining of the agreement in other arenas too. He expressed concern about Canada’s interpretation of the “C” in free, Prior and infomred consent as the “consultation” rather than “consent.”

FPIC shows up in four articles of the U.N. Declaration, which also says that any entity violating that right must provide redress.

Other international and U.S. bodies besides the Declaration refer to consent rather than consultation, he said. For instance the U.N. Committee on the Elimination of Racial Discrimination (CERD) stipulates that “no decisions directly relating to [indigenous] rights and interests are taken without their informed consent.”

Deer also stated that when the U.S. endorsed the Declaration, it too mentioned “meaningful consultation” with tribal leaders but not necessarily consent. Under that interpretation, governments and corporations could just tell the indigenous communities what they were doing and continue doing it.

United States consultation policy with Indian Nations

An important part of the relationship between the United States and the Indian Nation governments is the interplay and consultation between these entities. The U.S. has charged itself with trustee responsibilities for many tribal and individual Indian assets as a result of the long history of federal Indian policies.

Most tribes and Indians are very disappointed, however, on how the U.S. carries out its duties to fully and completely consult with Indians before many federal decisions that impact very important tribal and Indian interests and rights.

The Secretary of the Interior Ken Salazar and Assistant Secretary for Indian Affairs Indian Echo Hawk recently submitted a Draft Consultation Policy to Tribal Leaders and are seeking comments by March 14.

According to the federal government this policy creates a framework for a greater role for tribes
in decisions that affect Indian Country.

Interior wants input from Indian country on the draft policy to guide the Department in carrying out President Obama’s directive to all federal departments to develop ways to improve communication and consultation with Tribal leaders in order to develop positive solutions for issues affecting the First Americans.

The draft policy contains detailed requirements and guidelines for Interior officials and managers to ensure they are using the best practices and most innovative methods to achieve meaningful consultation with Indian Tribes. The Department will identify and seek to address impediments, both external and internal, to improving its consultation processes. In order to increase accountability, bureaus and office heads will implement training, performance standards, and comprehensive annual reporting to the Secretary on the results of their consultations, including the scope, cost and effectiveness of these efforts.

The draft policy was developed in response to President Obama’s Nov. 5, 2009 White House Memorandum on Tribal Consultation, which signaled this Administration’s commitment to strengthening the government-to-government relationship between the United States and Tribal nations. The President’s memorandum supported tribal consultation as “a critical ingredient of a sound and productive Federal-tribal relationship” and called on all federal agencies to develop plans of action to establish tribal consultation policy.

Secretary Salazar directed departmental and bureau officials to conduct an assessment of current policy and convene a series of meetings with tribal representatives aimed at improving current tribal consultation practices. The process included extensive meetings in seven cities with 300 tribal representatives and more than 250 federal officials participating.

View the Draft Tribal Consultation Policy.