SUBMISSIONS OF THE ATHABASCA CHIPEWYAN FIRST NATION ...

Page 4 April 28, 2009
which the Crown makes decisions does not accord with the honour of the Crown,
then permits, licenses and approvals can be struck down quite apart from the
potential impacts on our rights.
We are concerned that the federal government often ignores its “process-related”
obligations. We are often told that the Crown does not have to consult until
applications for development are filed. The Dene Tha’ case makes it clear that
the filing of an application, particularly on large projects, is not the trigger for
consultation. Consultation is required when the federal government is designing
processes for regulatory and environmental reviews of projects. That work often
begins long before an application is filed.
The case law makes it clear that offering us no more in the way of input than
processes that afforded to the public will not meet the Crown’s onerous
obligations. Moreover, telling us that we can participate in public hearings is also
not sufficient for the Crown to meet its duties, particularly since those tribunals
are quasi-judicial and do not, themselves, consult.
(b) Steps that can be taken to address some of our concerns
We wish to focus on some ways in which the federal government could do a
better job of meeting its process-related obligations, which would help to protect
our section 35 rights. Our focus will be on the federal environmental assessment
process. We note that failure to consult with us on the issues set out below can
lead to litigation, disputes, and project delays. On the other hand, working
cooperatively with us can lead to the opposite result.
3393259.1
i. Consultation on CEEA Triggers
In environmental assessments, the role or lack of role of the federal government is
largely determined based on decisions about whether there are federal “triggers”
for a particular project. Those decisions are made without consultation with First
Nations. This is troubling to us because First Nations have important knowledge
and information about potential social, cultural, economic and environmental
impacts of projects on our section 35 rights which fall under federal legislation:
navigable waters, fisheries, potential impacts on reserve interests.
As in much of federal decision making, it is difficult for us to understand how the
federal government can determine the existence or lack of existence of CEEA
triggers without consulting with us. How, for example, can the federal
government determine, on its own, whether fisheries habitat could be destroyed
pursuant to section 35 of the Fisheries Act, one of the common CEEA triggers, if
they do not speak to us? This is particularly hard to understand when we have