Do First Nation members hold Aboriginal and treaty rights individually or collectively? Or, put more simply do the interests of individuals trump those of the collective or vice versa? There’s a situation unfolding just outside Ottawa that highlights this question.
A development proposed on the Albert and Chaudière Islands in the Ottawa River, within Algonquin territory, is pitting job seekers against site preservers. The islands, known as Asinabka, have been sacred to the Algonquins for thousands of years. The development plans include an undisclosed number of jobs for Algonquin members but also involve the disturbance of a sacred site. The communities that have treaties with Ontario and the federal government covering the lands are in favour of the project while other Algonquins, many of whom live off-reserve, are not.
The subject of collective rights for First Nations is complex. First Nations are more than an aggregate group of individuals, but very generally speaking, are a collective of people who share a common heritage, history, culture, language, land base, and traditions which leads to their members sharing a common identity as well as having an individual identity.
So how does that affect the rights of individuals to take actions that are not aligned with the collective? Below is an excerpt from an Aboriginal Law Update from the firm McCarthy Tétrault LLP regarding a court case - Behn v. Moulton Contracting Ltd., 2013 SCC 26 - that dealt with collective vs individual rights.
1. Collective versus individual rights
The SCC commented that, while Aboriginal and treaty rights are collective in nature, certain rights may be exercised by individual members of a First Nation and may have individual aspects. The SCC commented that in appropriate circumstances, individual members may assert certain Aboriginal and treaty rights. In our view, this is correct and is not a new proposition at law. Many Aboriginal rights cases have involved the assertion of Aboriginal and treaty rights by individuals, including raising such rights in their defence against regulatory or criminal charges.
However, the SCC declined to go further and attempt to classify or develop categories of Aboriginal and treaty rights or to distinguish collective versus individual rights. The SCC held that, on this appeal, it was not necessary to do so, and confined its conclusions to what was needed to determine the issues at hand; it held that the issue of abuse of process was determinative. Whether there may be any value in creating categories of collective versus individual rights in future cases remains to be seen.
2. Individuals’ rights to assert the duty to consult
The more crucial point from the SCC in this decision is that an individual can only allege a breach of the duty to consult if the individual has been authorized to do so by the Aboriginal group that holds the Aboriginal or treaty rights. In this sense, this decision confirms previous pronouncements from the SCC that the duty to consult is owed to an Aboriginal group, and not to individual members of such group.”
- How does this affect your consultation strategy? Here are some suggestions for consideration:
- If the Nation holds a treaty, have a full understanding of that treaty - each treaty is unique
- Consult with the collective but don’t ignore the interests of individuals
- Cast a wider net in your consultation or engagement activities. Get past the “gatekeeper” at some point.
- Maybe not right away. We have seen people deal with only one representative or a small group of representatives and not have any community support and see agreements fail later. If the Nation has Consultation Guidelines, be sure your consultation strategy complies with those Guidelines