Evidence on the Adequacy of First Nations Consultation - BC Hydro ...
Evidence on the Adequacy of First Nations Consultation - BC Hydro ... Evidence on the Adequacy of First Nations Consultation - BC Hydro ...
3 – Consultation Assessment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3.0 CONSULTATION ASSESSMENT In Haida, the Supreme Court of Canada stated that the Crown has a duty to consult if it contemplates conduct that may adversely affect asserted aboriginal rights and title and that the scope and extent of the duty is determined by (i) a preliminary assessment of the strength of the aboriginal rights or title asserted by the First Nation, and (ii) the potential impacts on the asserted aboriginal rights and title. 3.1 Strength of Claim Analysis There are overlapping First Nation claims in the Project area. BC Hydro’s preliminary analysis, based on the information reviewed by BC Hydro as of May 7, 2010, is that the KNC and the SIB probably have reasonable claims but the asserted claims of the other identified First Nations are relatively weak. 3.1.1 KNC The entire Project is located within the asserted traditional territory of the KNC. The four First Nations that are members of the KNC have chosen to consult with BC Hydro collectively on the Project through the KNC. BC Hydro has therefore not analyzed the strength of claim of each of the four First Nation members in any detail. The information BC Hydro considered suggests that the KNC has a reasonable aboriginal rights claim in the Project area. In September 2009, BC Hydro asked Bouchard and Kennedy Research Consultants to summarize and discuss the known and available evidence that may clarify potential First Nation’s claims of Aboriginal rights and title in the area of the proposed CVT Project. A copy of draft 2009 Bouchard and Kennedy report is attached. The report is in “draft” form only as of May 7, 2010. As previously noted, on April 30, 2010, the KNC provided to BC Hydro a copy of their first of three AUIS reports entitled “The Ktunaxa Nation and the Upper Columbia Valley: A Survey of Historical Documentation and Research Relating to Aboriginal Use and BCTC Columbia Valley Transmission Project –
3 – Consultation Assessment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Interest” (B.D. Robertson). A copy of this report is included in Appendix A. The Robertson report is largely a detailed literature review. BC Hydro has not had sufficient time to review the report in detail and assess the merits of the opinions or findings in the report. However, BC Hydro has considered the report in its strength of claim analysis. The Robertson report supports BC Hydro’s preliminary assessment that the KNC probably has reasonable aboriginal rights claims in the Project area, particularly in terms of seasonal hunting and fishing activities. 3.1.2 SIB The entire Project is located within the asserted traditional territory of the SIB, and a portion of the transmission will be in the proximity of the SIB reserve. BC Hydro and the SIB have signed a Benefits Agreement and a Contracting Agreement with the SIB, and the SIB acknowledges that it has been adequately consulted and accommodated. BC Hydro is therefore of the view that it is not necessary to engage in a detailed strength of claim analysis in respect of the SIB. BC Hydro is of the view that the SIB has a reasonable claim. 3.1.3 Other SNTC BC Hydro acknowledges that other SNTC member First Nations have asserted interests in the area. However, BC Hydro is of the view that their claims are comparatively weaker. A number of these bands have provided letters of confirmation of support to the SIB regarding the SIB’s relationship with the Project. 3.1.4 SALD In the specific context of SALD, BC Hydro is of the view the asserted claims are comparatively weaker. BCTC Columbia Valley Transmission Project –
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3.0 CONSULTATION ASSESSMENT<br />
In Haida, <strong>the</strong> Supreme Court <strong>of</strong> Canada stated that <strong>the</strong> Crown has a duty to c<strong>on</strong>sult if it<br />
c<strong>on</strong>templates c<strong>on</strong>duct that may adversely affect asserted aboriginal rights and title and<br />
that <strong>the</strong> scope and extent <strong>of</strong> <strong>the</strong> duty is determined by (i) a preliminary assessment <strong>of</strong><br />
<strong>the</strong> strength <strong>of</strong> <strong>the</strong> aboriginal rights or title asserted by <strong>the</strong> <strong>First</strong> Nati<strong>on</strong>, and (ii) <strong>the</strong><br />
potential impacts <strong>on</strong> <strong>the</strong> asserted aboriginal rights and title.<br />
3.1 Strength <strong>of</strong> Claim Analysis<br />
There are overlapping <strong>First</strong> Nati<strong>on</strong> claims in <strong>the</strong> Project area. <strong>BC</strong> <strong>Hydro</strong>’s preliminary<br />
analysis, based <strong>on</strong> <strong>the</strong> informati<strong>on</strong> reviewed by <strong>BC</strong> <strong>Hydro</strong> as <strong>of</strong> May 7, 2010, is that <strong>the</strong><br />
KNC and <strong>the</strong> SIB probably have reas<strong>on</strong>able claims but <strong>the</strong> asserted claims <strong>of</strong> <strong>the</strong> o<strong>the</strong>r<br />
identified <strong>First</strong> Nati<strong>on</strong>s are relatively weak.<br />
3.1.1 KNC<br />
The entire Project is located within <strong>the</strong> asserted traditi<strong>on</strong>al territory <strong>of</strong> <strong>the</strong> KNC. The<br />
four <strong>First</strong> Nati<strong>on</strong>s that are members <strong>of</strong> <strong>the</strong> KNC have chosen to c<strong>on</strong>sult with <strong>BC</strong> <strong>Hydro</strong><br />
collectively <strong>on</strong> <strong>the</strong> Project through <strong>the</strong> KNC. <strong>BC</strong> <strong>Hydro</strong> has <strong>the</strong>refore not analyzed <strong>the</strong><br />
strength <strong>of</strong> claim <strong>of</strong> each <strong>of</strong> <strong>the</strong> four <strong>First</strong> Nati<strong>on</strong> members in any detail.<br />
The informati<strong>on</strong> <strong>BC</strong> <strong>Hydro</strong> c<strong>on</strong>sidered suggests that <strong>the</strong> KNC has a reas<strong>on</strong>able aboriginal<br />
rights claim in <strong>the</strong> Project area.<br />
In September 2009, <strong>BC</strong> <strong>Hydro</strong> asked Bouchard and Kennedy Research C<strong>on</strong>sultants to<br />
summarize and discuss <strong>the</strong> known and available evidence that may clarify potential <strong>First</strong><br />
Nati<strong>on</strong>’s claims <strong>of</strong> Aboriginal rights and title in <strong>the</strong> area <strong>of</strong> <strong>the</strong> proposed CVT Project. A<br />
copy <strong>of</strong> draft 2009 Bouchard and Kennedy report is attached. The report is in “draft”<br />
form <strong>on</strong>ly as <strong>of</strong> May 7, 2010.<br />
As previously noted, <strong>on</strong> April 30, 2010, <strong>the</strong> KNC provided to <strong>BC</strong> <strong>Hydro</strong> a copy <strong>of</strong> <strong>the</strong>ir<br />
first <strong>of</strong> three AUIS reports entitled “The Ktunaxa Nati<strong>on</strong> and <strong>the</strong> Upper Columbia Valley:<br />
A Survey <strong>of</strong> Historical Documentati<strong>on</strong> and Research Relating to Aboriginal Use and<br />
<strong>BC</strong>TC Columbia Valley Transmissi<strong>on</strong> Project – <str<strong>on</strong>g>Evidence</str<strong>on</strong>g> <strong>on</strong> <strong>Adequacy</strong> <strong>of</strong> <strong>First</strong> Nati<strong>on</strong>s C<strong>on</strong>sultati<strong>on</strong> 12<br />
7 May 2010
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