Volume 1 - Resource Management
Chapter 15 - Aboriginal Issues

Policy 15.1 - Aboriginal Rights and Title
Appendix, Consultation Guidelines

Effective Date: 03-June-99
Responsible Branch: Aboriginal Affairs Branch

Resource Management Volume Table of Contents | Amendment Log

Along with the context provided by the Ministry of Forests Policy on Aboriginal Rights and Title, the following guidelines are to assist staff in addressing aboriginal interests in operational planning processes. Flexibility exists within each step to allow staff to develop processes which are responsive to specific issues or concerns. Districts and regions may develop further processes which are consistent with these guidelines. The Ministry of Forests will rely on working relationships between local staff and aboriginal groups to carry out consultation in a flexible, workable and efficient manner.

The guidelines below outline a number of elements that can be applied during consultation to determine the appropriate level and method of consultation. They do not constitute district standard operating procedures, or address particular forest management activities.

The guidelines provide a framework and standards for consultation, ensuring that consultation practices are consistent across the Ministry of Forests. The first part of the guidelines consist of an overview of consultation processes, while the second part outlines considerations related to potential aboriginal rights and/or title for staff to use in relation to information gathered through consultation.

The guidelines herein are generally geared towards operational processes and approvals leading to the issuance of licenses and permits (such as forest development planning, new woodlot licenses or range use plans). Other opportunities for First Nations involvement (such as information sharing) may be beneficial for other types of forest management activities such as strategic or long-term plans, AAC determinations, silviculture activities and tenure replacement.

As per the guidelines, steps should be taken to consult with First Nations early in operational planning. As consultation is a "two-way street" dependent on participation from aboriginal groups and government alike (Ryan and Cheslatta), forest management decisions will continue to be made in cases where a First Nation chooses not to participate in consultation processes.

Ministry of Forests staff are not the proper authority to explicitly or implicitly confirm (or deny) the existence of aboriginal rights and/or title. The question before decision makers is to identify the POTENTIAL for aboriginal rights and/or title in the area in question. This will serve to inform subsequent levels of consultation and possible adjustments to planning processes in response to aboriginal interests identified during consultation.

Further information on specific topics is also contained in the Aboriginal Issues Binder as a resource to region and district staff.

THE CONSULTATION PROCESS
(Timeframe: initial notification to approximately 120 days after notification)

Ministry staff must take all reasonable steps to identify potentially affected aboriginal groups, provide them with all relevant information regarding the proposed forest management activity, and request information from them which will assist in the identification of aboriginal interests. As aboriginal interests are held by collectives rather than individuals, staff should deal with authorized representatives of aboriginal groups (such as Band Councils, Tribal Councils, hereditary systems or other recognized First Nations organizations).

It is recommended that consultation begin with a broad description of proposed forest activities and general considerations of aboriginal interests within potentially affected areas. First Nations responses (that may be related to potential rights and/or aboriginal title) from these initial discussions will guide the level and scope of subsequent consultation processes.

The recommended process for obtaining the information necessary to determine whether there may be aboriginal interests in the proposed forest management area is as follows.

 

Timeframe Activities
Approx. 20 days after notification
  • Carry out a priority assessment to determine the necessity of consultation (see explanation on the Priority Assessment under the section "Considerations for the Consultation Process.")
  • If not already done, identify First Nation(s) which may be potentially affected by the proposed forest management activity, taking into account overlapping First Nations asserted territories. A meeting should be requested to discuss the consultation process concerning the forest development activity and the identification of aboriginal interests (Again, consultation processes can help to define agreeable processes, where process is an issue).
  • Notify and provide relevant information, where possible at the Forest Development Plan stage, to First Nations about the proposed forest management activity. Correspondence through letters and meetings explaining the location, nature, and extent of the proposed activity should provide aboriginal groups with an understanding of the on-the-ground impact of the proposed activity. Technical and descriptive information, such as diagrams and appropriate mapping products depicting the location of the proposed activity, should be sent or delivered to the offices of the potentially affected First Nations.
Approx. 60 days after notification

 

 

 

 

 

 

 

 
  • A meeting should be requested with the affected First Nation(s) to obtain specific information concerning the length or timeframes of use or occupation, location, kind, and importance of aboriginal interests, if any, within the forest development plan area or the area that will be affected by the proposed activity, as appropriate. Where possible, initiate processes to facilitate ongoing communication between the Ministry and the First Nation (and other parties if appropriate) with respect to the proposed forest management activity.
  • Where information is not provided by the potentially affected First Nation(s), Ministry staff should make efforts to gather information regarding the potential existence of aboriginal interests in the forest management area. Where the statutory decision-maker determines there is significant potential for archaeological resources, an archaeological impact assessment may be appropriate.
  • It is important that all reasonable efforts have been made to initiate and carry out a consultation process with the affected First Nation. If the affected First Nation refuses to participate, or will only participate on a "without prejudice" basis, reasonable steps should be taken to inform them of operational planning processes on an ongoing basis and to request their participation in them. Refusal to participate, or insistence on "without prejudice" participation, is not a reason for delaying the operational planning process.
Approx.

60 - 100 days after notification
  • Carry out an internal assessment using information gathered during consultation processes to address the nature of any aboriginal interests, if any, which come to light through the consultation process detailed above, including the geographic location and extent of such an interest.

The stages described in the section "Considerations for the Consultation Process" below outline a a number of necessary internal assessments:

  1. Determine whether to address the potential existence of aboriginal interests in relation to the proposed activity (Consideration Stages 1A, 1B);
  2. Determine whether there may be an infringement, and if so, the degree of likely impact (Consideration Stages 2A, 2B);
  3. Determine the justifiability of any likely infringement (Consideration Stages 3A, 3B).

Situations where aboriginal interests are highly site-specific will increase the likelihood that an infringement may occur and warrant deeper levels of consultation. These considerations may require further consultation, or mitigative measures (adjustments to development plans), etc.
Approx. 120 days after notification
  • Draft a final decision and any necessary rationales for decision. Notify relevant parties (More discussion on this stage in the section "Considerations for the Consultation Process"--Stage 4).

 

 CONSIDERATIONS for the CONSULTATION PROCESSES:

The following sections outline necessary considerations for information gathered during consultation. Each of the stages below contain examinations to help decision makers focus relevant information for the decision in question.

The points below were derived from a number of relevant legal decisions, and have been compiled into a format which provide steps for considering the nature of aboriginal interests:

 

Examining the need to consult (Priority Assessment).

  1. Determine whether to address the potential existence of aboriginal interests in relation to the proposed activity (Consideration Stages 1A, 1B);
  2. Determine whether there may be an infringement, and if so, the degree of likely impact (Consideration Stages 2A, 2B);
  3. Determine justifiability of any likely infringement (Consideration Stages 3A, 3B).

 

 

 

This chart outlines the considerations process in the following pages.

 

 Priority Assessment (Pre-consultation)
First Nations often state that they are not able to keep up with the volume of referrals sent by the Ministry of Forests, and the ministry shares this concern. Two areas of effort can help to address this concern:
  1. Where possible, districts should hold discussions with First Nations on the different forms of forest management activities on which they wish to receive information and those activities they do not wish to be consulted on. These discussions will focus the efforts of consultation to areas of mutual priority.
  2. A number of factors may also be considered to evaluate the degree of consultation that needs to be undertaken before the approval of a particular activity. These include:
  • the potential impact of the proposed forest management activity on aboriginal interests;
  • the degree of consultation undertaken to date;
  • the nature of the land at issue;
  • emergency measures; and
  • public safety.

Consideration of these factors in setting priorities for consultation, along with discussions with First Nations on desired areas of consultation, will enable the Ministry of Forests and First Nations to conduct more productive consultation on activities that are particularly critical to both parties.

Decision makers may wish to consider the following examples in determining consultation priorities (This is an illustrative list only; the examples below are not absolute or exhaustive and may differ for each consideration.):

  1. Area-extensive and long-term development proposals and/or tenures, such as forest development plans, may have a significant impact on aboriginal interests, and the process detailed below (Stages 1-4) should be followed.
  2. Small scale and shorter-term activities and/or tenures, such as hay cutting or stock trails, are less likely to have a significant impact on aboriginal interests. The process detailed herein (Stages 1-4) may be amended to fit such a situation.
  3. Consultation would not normally be necessary for specific cutting permits under forest development plans previously consulted upon. However, decision makers should always seriously consider whether they are satisfied with the level and content of previous consultations, and undertake further consultations where deemed necessary. Where further relevant information comes to light after consultation at the level of the forest development plan, consultation at the level of the cutting permit should be considered and may be necessary, depending on the circumstances of the situation.
  4. Where staff from another agency have consulted with First Nations about a project involving more than one agency (i.e. major projects such as a pipeline or hydro lines), Forest Service staff must satisfy themselves that an appropriate degree of consultation has been done. Communication between agencies in this situation is very important to ensure information sharing and the wise use of consultation resources.
  5. If the nature of the land where the forest activity is proposed precludes aboriginal interests; (i.e., if it is private property, or if it has been extensively developed in a manner such as a parking lot), consultation is unlikely to be appropriate.
  6. Activities which restore the land towards its original condition (such as silviculture activities) may not require consultation.
  7. Short-term, expedited activities, such as salvage or sanitation harvesting for bark beetles, require a timely process. Therefore, the steps detailed below (Stages 1-4), including timeframes, may be shortened and revised in such circumstances. Where Forest Service staff have previously consulted with First Nations on a preliminary plan, such as aerial survey maps of beetle damage, the requirements for additional consultation may be reduced.
  8. Some activities, such as forest surveys and inventories, are unlikely to have any significant impact on aboriginal interests, and so should not be referred.
  9. Emergency measures or public safety issues, regardless of their impact on aboriginal interests, take precedence over consultation; for example, wildfire suppression. Where applicable, consultation may be incorporated once the emergency or public safety issue has been addressed.

 

CONSIDERATION STAGE 1A Examining the potential for aboriginal rights
(Approximately 60 days after notification)
 

 

 

 

 

 If the aboriginal interest prior to contact with European society is not likely to have been an exclusive use of a particular area by the First Nation in question, and can best be characterized as resource use for purposes that were integral to that particular distinct aboriginal culture, then that aboriginal interest may amount to an aboriginal right (as distinct from aboriginal title). For example, aboriginal rights may include (but are not limited to) fishing, hunting and trapping for food, and the use of land and resources for medicinal, spiritual and ceremonial purposes.

The existence of an aboriginal right is primarily a question of historical fact, which can only conclusively be determined by the courts or modified and redefined through the treaty process. However, in the absence of court rulings on the scope and location of particular rights or title, or a treaty, circumstances require Ministry staff to take reasonable steps to obtain relevant information, and to use that information to determine:

  1. Whether the potential for aboriginal rights exists in the proposed forest management area, and if so,
  2. The nature, location and extent of those potential rights.

Determine with available information whether there may be potential aboriginal rights in the management area and if so, the nature, content, location of those rights, and who can assert them. Relevant questions for this consideration will usually include:

  • Did aboriginal people use land or resources within the proposed forest management area prior to contact with European society?
  • What was the nature of the use, and where within the forest management area did it take place?
  • Can the uses fairly be described as integral to the culture of the particular aboriginal societies in question? If assistance is necessary in this regard, staff should consult the Aboriginal Affairs Branch.

If there are potential aboriginal rights, the considerations in Stage 2A (in addition to those in 1B, below) should be used.

 

CONSIDERATION STAGE 1B Determining whether to address the potential for aboriginal title
(Approx. 60 days after notification)
 

 

 

 

 

 

 

 

 

 

 

  

If the aboriginal interest as of 1846 was exclusive occupation of land, there will be a potential for aboriginal title in that area. For example, potential aboriginal title may include (but is not limited to) lands near a reserve or former settlement, areas of documented traditional use or archaeological sites indicating exclusive occupation, lands subject to a specific claim, and lands close to known fishing, hunting, trapping, gathering or cultural sites.

Ministry of Forests decision makers do not have the authority to confirm or verify the existence of aboriginal title. Aboriginal title must be legally proven, and the onus lies with First Nations to prove the existence of aboriginal title over any particular lands.

Accordingly, the statutory decision maker will make a general assessment as to whether the potential for aboriginal title within the proposed forest management area warrants further consideration. In making this assessment the following considerations should be taken into account collectively:

  • Has the land been Crown land since 1846?
  • Are the affected lands near or adjacent to a reserve or former settlement or village sites?
  • Is the land in areas of traditional use or archaeological sites?
  • Is the land used for aboriginal activities?
  • Has there been significant notice of interest from the First Nation?
  • Is the land subject to a specific claim?
  • Is the land close to known fishing, hunting, trapping, gathering or cultural sites?

The potential of aboriginal title may not require further operational consideration where:

  • The land is already subject to an existing treaty.
  • The land is already substantially altered through substantial development.
  • The land is distant from reserves or settlement areas with no known aboriginal interests.
  • The land is already alienated or on a long-term lease to third parties.
  • There is no indication that an aboriginal group has maintained a substantial connection or special bond with the land since 1846.
  • The particular area of land was subject to disputes between two or more First Nations as of 1846.

Statutory decision makers should weigh the above factors collectively when considering appropriate steps for the consultation process (further consultations, mitigative measures, final decisions, etc.). Assistance from the Aboriginal Affairs Branch is available to help in this process.

If it is determined that the potential aboriginal title is relevant to decision making processes, the District Manager should notify the Regional Manager and Aboriginal Affairs Branch for assistance in consultation activities, and advice on consideration processes. Assistance from Ministry of Attorney General is available for this process, and can be coordinated through Aboriginal Affairs Branch.

 

CONSIDERATION STAGE 2: Infringement examinations
(Approximately 70-90 days after notification)

Since the infringement considerations are different for aboriginal rights than for aboriginal title, they are considered separately.

CONSIDERATION STAGE 2A:
Determining whether infringement of an potential aboriginal right may occur
 

 

 

 Infringement within the meaning of these guidelines occurs where a forest management activity will physically prevent or significantly impair the exercise of an aboriginal right.

Determining whether or not the proposed forest management activity will infringe the identified potential for aboriginal rights involves a consideration of the following factors:

  • the nature, location and extent of the potential aboriginal right in relation to the proposed forest management activity;
  • the terms and purpose of the forest management activity;
  • the nature and extent of the forest management rights and obligations of the licensee/permittee; and,
  • whether the potential aboriginal right will be precluded by the forest management activity or may still be practiced in the preferred manner without undue hardship on the remainder of the traditional territory, unaffected by the forest activity.

Infringement does not occur where:

  • forest management activities will have no impact on potential aboriginal rights; or
  • potentially existing aboriginal rights can be accommodated with the activities specified within the tenure.

An infringement will occur if the proposed forest management activity:

  • imposes undue hardship on the First Nation;
  • denies the First Nation their usual method of practicing that right; or
  • limits the potential aboriginal right unreasonably.

If an infringement may occur, then go to Stage 3A (in addition to addressing considerations under 2B, below).

 

CONSIDERATION STAGE 2B: Infringement considerations related to potential title
If it is determined that the potential for aboriginal title needs to be addressed in decision making processes, then the potential degree of infringement should be examined to assist in determining whether further consultation or mitigative measures are required.

Examine the extent to which the activity will affect the landbase.

  • Does the proposed activity interfere with aboriginal activities on the land or limit what the First Nation might be able to do with the land?
  • Will the forest activity change or damage the nature of the land?
  • To what extent is the forest resource renewable or non-renewable?
  • Will any of the land be sold to third parties as part of this activity?
  • Will long term leases or tenures be provided to third parties?
  • Are the leases or tenures renewable?

If one or a combination of the above considerations indicate a high impact on the landbase (i.e. impacts not temporary in nature, little chance of reclaiming the land to its original state), decision makers should carry out the steps in STAGE 3B, below.

 

CONSIDERATION STAGE 3A: Where infringement of a potential aboriginal right is likely
(Approximately 100 days after notification)
 

 

 

 

 

  

Any infringement of potential aboriginal rights must be justifiable according the principles found in Sparrow:

  1. Is there a valid legislative objective, such as conservation?
  2. After conservation measures are taken, has priority been given to the aboriginal right?
  3. Have other considerations been addressed (i.e.: Is there as little infringement as possible? Has there been appropriate consultation?).

If it appears that the proposed forest management activity may infringe on a potential aboriginal right, the following steps should be taken to attempt to accommodate the aboriginal right and forest activity:

  1. In conjunction with discussions with the First Nation, identify ways to reconcile the aboriginal right and the forest management activity, through accommodation if possible.
  2. Consult with affected First Nations and third parties with respect to proposed accommodations.
  3. In assessing whether accommodation of competing interests is possible, the following considerations can be taken into account:
  • the potential impact of the forest activity on the potential aboriginal right
  • measures to limit possible infringement of the aboriginal right (for example, relocate forest activity or identify alternate areas where the aboriginal right may be exercised)
  • the economic implications for the local community and affected First Nations
  • conservation or resource management concerns
  • is the potential aboriginal right site specific, or likely in relation to a wider area ?
  1. Where an infringement of an aboriginal right is likely, statutory decision makers should request assistance before making a final decision, through the appropriate channels, from the Regional Manager, Aboriginal Affairs Branch, and the Ministry of Attorney General. A final decision should include the considerations detailed in Stage 4.

 

CONSIDERATION STAGE 3B: Where there is potential for aboriginal title
(Approximately 100 days after notification)
If one or a combination of the considerations in the infringement examination indicate a high impact on the landbase (i.e. long-term impacts, little chance of reclaiming the land to its original state), flowing from considerations under 2B, above, decision makers should:
  1. Identify ways to mitigate impacts of forest management activities if any. These may include First Nations involvement in monitoring operations, changing plans to avoid areas of high importance, and other measures.
  2. Examine the following considerations along with advice from Aboriginal Affairs Branch and Legal Services Branch, and where necessary, direction from ministry executive:
  • the relative likelihood of potential title;
  • the potential impact of the forest activity on the landbase;
  • the level of consultation undertaken to date; and
  • possible mitigative measures that may be taken to address potential title, and minimize the project’s impact.
  1. Statutory decision makers should request assistance, through resources available to provide advice, such as the Regional Manager and Aboriginal Affairs Branch, (and coordinated through Aboriginal Affairs Branch): Assistant Deputy Minister, Executive, and the Ministry of Attorney General where an infringement of potential aboriginal title appears likely, or where a decision to preclude development is made on the basis of aboriginal interests.
  2. Consult further with affected First Nations and third parties with respect to proposed mitigation in response to aboriginal interests. Depending on the degree or level of infringement identified in Stage 2B, invite First Nations to participate more directly in planning, and consider interim mitigative measures.
  3. Along with advice from Aboriginal Affairs Branch, and Ministry of Attorney General, determine whether the level of consultation and/or mitigative measures are sufficient for justification. A final decision should include the considerations detailed in Stage 4.

 

CONSIDERATION STAGE 4: The final decision
(Approximately 120 days after notification)
After having considered the factors summarized in the previous stage, the decision maker will make a final decision with respect to:
  • whether the proposed forest management activity will take place and on what terms
  • levels of consultation undertaken in relation to information gathered on aboriginal interests
  • how a First Nation’s concerns were considered in the decision making processes and
  • instructions to proponents regarding mitigative measures where appropriate.

Where significant aboriginal interests have been raised through consultation processes, statutory decision makers will inform the First Nation in writing of the decision. In other cases, reasons for decisions will be made available to First Nations on request.

Documentation/Rationale

Records should be kept documenting the process followed in each case. Include:

  • First Nation(s) contacted and why
  • communication log of telephone conversations, discussions, letters, meeting, activities (i.e., studies), and contact attempts made by the Ministry
  • responses provided
  • considerations on aboriginal interests, including the nature of those interests (are they connected to the land, etc.)
  • actions taken to avoid infringement of potential aboriginal interests
  • actions taken to examine the nature and extent of aboriginal interests which may be present.
  • description of how the level of consultation/mitigative measures have addressed aboriginal interests.
  • aboriginal concerns where no action was taken and why

Rationales for decision will document how specific relevant information brought forward by the First Nation was addressed through consultation and planning processes.

Responsibilities

District Managers are responsible for the implementation of these guidelines.

Regional Managers are responsible for the consistent application of these guidelines throughout their regions.

The Regional Manager; Assistant Deputy Minister, Operations; Executive; Aboriginal Affairs Branch; and Ministry of Attorney General are responsible for providing assistance to the District Manager where an infringement of aboriginal interests may arise.

The Aboriginal Affairs Branch is responsible for monitoring the provincial implementation and effectiveness of these guidelines, providing advice and assistance to regional and district managers, and coordinating advice and input from ministry executive and other agencies.

Policy 15.1, Aboriginal Rights and Title