Lanise Hayes spoke at the Aboriginal Mawi’omi conference in December 2014. This post covers part 1 of her presentation. One may often wonder how impact benefit agreements fit in the Aboriginal context. The seminal cases listed below established the fiduciary duty of the Crown toward Indigenous peoples and how this actually translates in day-to-day dealings with Indigenous peoples.
The four following seminal cases establish the fiduciary duty of the Crown toward Indigenous peoples:
- R. v. Sparrow – restraint on exercise of government power that impacts government rights
- Delgamuukw v. British Columbia – Aboriginal titles include exclusive use and occupation of land
- Haida Nation v. British Columbia – duty to consult and accommodate even where title not established
- Tsilhqot’in Nation v. British Columbia – duty to consult proportionate to strength of assertion but consent when title established
In Sparrow, the SCC decided that federal legislative powers must be reconciled with the Crown’s fiduciary duty such that any infringement of Aboriginal rights must be justified.
Delgamuukw dealt with Aboriginal title and the SCC determined that title includes the right to exclusive use and occupation of the land, it is sui generis and cannot be sold or transferred to anyone. The SCC also decided that the use cannot be irreconcilable with the nature of the Indigenous group’s attachment to the land.
Haida established the duty to consult and accommodate as integral to the honour of the Crown. This means that the Crown cannot ignore Aboriginal interests where a claim is being pursued or title has been established when contemplating some action that might adversely affect the claim or title.
The most recent decision in Tsilhquot’in essentially reiterates past decisions respecting title. Once title is established, the SCC appears to impose an obligation to obtain consent on government and third parties.
So essentially, impact benefit agreements are a tool that enables business and government to ensure that the duty to consult and accommodate Indigenous peoples is satisfied. Not only that, but impact benefit agreements are a way for Indigenous peoples to engage with business and government so that development of resources on their lands respects their way of life, procures sustainable economic benefits for them, and minimally impacts their enjoyment of their lands.