Provincial Policy Analysis With Regard to Cumulative Impact Assessment of
Developments in Treaty 8 Area
October 11, 2007
This project is just one of four other projects being undertaken by scholars investigating
the impact of development in the Treaty 8 region of Canada. The area under consideration
involves three provinces, one territory and a number of First Nation and Metis governments. In
our initial assessment of policy of the provincial/territorial governments, we find that each
jurisdiction has a different policy with regard to development. Moreover, while none of the
jurisdictions have specific policies directed toward the Treaty 8 region, they do have specific
policies for Aboriginal people and development. In addition, there is no specific policy with
regard to “cumulative” impact although in some cases, the vagueness of the policy would allow
for this to be taken into consideration when assessing the impact of some development. The
following assessment of policy is focused directly upon the Saskatchewan government. On the
basis of my preliminary reading of documents and speaking to government officials, the
following information will provide a “peek” at Aboriginal policy with regard to development by
the Saskatchewan government. Our initial analysis will focus on (1) What is in the Aboriginal
policy and (2) What is not in the policy.
Content of Saskatchewan Aboriginal Policy with regard to Cumulative impact of
Developments
The current guidelines to be used by the Saskatchewan government departments were
developed in 2006. These Aboriginal policy guidelines with regard to development are based on
the existing case law and reflect, the minimum legal requirements established by the courts. At
the same time, these guidelines are not intended to replace or supercede the
“…internal policies and practices providing direction on consultations, the development
of partnerships, co-management arrangements or other working relationships between the
Government of Saskatchewan and First Nations or Metis.” (Government of
Saskatchewan, 2006, p. 1)
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Saskatchewan is clear that Treaty and Aboriginal rights are an important component of
the legal social landscape of Saskatchewan. They also note that their policy is directed toward
First Nations across the province and only Metis in Northern Saskatchewan. Moreover, they
accept the position that it is the duty of the Government of Saskatchewan to consult with First
Nations and Metis, thereby accepting the policy that Government must act with honour and
integrity in its dealing with First Nations and Metis people. This is further reflected in the fact
that First Nations are not called “stakeholders” in the documents because of their unique
situation in the social and legal makeup of Canada. Furthermore, they acknowledge that they
have a constitutional obligation to consult with Aboriginal communities that MAY adversely
impact the ability to successfully exercise Treaty or Aboriginal rights. As such, they
acknowledge that the consultation process is essential and must take place before any legislation,
policy, program or other activities that could adversely affect Treaty of Aboriginal rights be
developed or put in place. Even if it is not clear that a government activity would adversely
affect Treaty or Aboriginal rights, they do not assume that consultation is not necessary.1
Furthermore, they see the process of consultation as a way to advance the process of
reconciliation. Moreover, no one branch, work unit or committee has the sole responsibility for
Aboriginal Affairs or activities. However, it would seem that the Saskatchewan Environment
Department is the key to developing Aboriginal Policy. This unit, in consultation with other
departments in the government, develops Aboriginal policy and guidelines. Once drafted, these
are then sent back to the relevant departments for response and possible revisions. Once there is
inter-departmental agreement, Saskatchewan Environment drafts the policy and ensures that
other units in the government have the appropriate policy documents.
The Guidelines (2006) provide a framework through which the province will meet their
consultation obligation as well as action to be taken. The Saskatchewan Environment branches
may develop processes specific to their unique needs as necessary as long as they are consistent
with the provincial guidelines and the operational procedures.
Consultation, for the Government of Saskatchewan, is a process that entails five steps:
notification, allowing time for the community to develop a response, presenting the
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community response to appropriate authorities, full consideration by the government of the
views presented by the community and reporting back to the community once the government
has made a decision. While the Government of Saskatchewan insists on all of the phases to be
honoured, it does not mean the process is mechanical or inflexible.
Nevertheless, the Government of Saskatchewan’s policy on consultation embodies a number of
principles:
� All consultations must be conducted with integrity and in good faith
� Aboriginal people must be directly engaged in the consultation process
� Aboriginal people are to be provided a say in how the consultation process occurs
� Consultation should occur as early in the decision-making process a possible
� Clear communication (including translation) must be evident in all aspects
� The provincial government must maintain overall responsibility for managing the
consultation process.
� Detailed records must be kept during the consultation process
� Information provided to Government in the consultation process is to be used to
determine if potential adverse affects can be avoided or mitigated.
In Saskatchewan, treaty Indians may hunt for food at all times of the year provided they are
hunting on unoccupied Crown lands and lands to which they have a right-of-access for the
purpose of hunting. They also recognize that northern Metis who live a traditional lifestyle have
an Aboriginal right to hunt, fish and trap for food at anytime of the year on unoccupied Crown
land. Once an activity contemplated by the provincial government is affirmed, they then analyze
whether or not Treaty rights or Aboriginal rights could be adversely affected by that action. This
notice would vary with the nature of the action being contemplated. Nevertheless, all information
provided to Aboriginal people (locally, regional or provincial) must be clear, complete and
understandable. Moreover, it needs to provide enough information that would allow the
community being consulted to adequately formulate its views on the issue and to prepare a
response.
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The current threshold to “trigger” such a consult is low and it would include several
dimensions regarding the strategic planning process: broad policies, legislation, programs, landuse plans, regional environmental studies A second step is to determine who is to be consulted.
Current jurisprudence suggest that consultation would be required with those Aboriginal peoples
whose traditional territories coincided with the geographic area where the impact would be felt.
Thus, if the action by the government impacted on the “right to hunt food” in a particular locale,
they would take the position that it was not necessary to consult with Aboriginal people across
the province.
Once the notification has been sent to the appropriate individuals/communities, the
Government must wait for some time so that the community can prepare its response. The
emphasis on responding now lies with the Aboriginal community. As it submits its response, the
Government of Saskatchewan must listen to the community concerns and then respond is such a
way that the Aboriginal community had a fair hearing and the process was meaningful. The
information collected by the community and provided to the government should play an
important role in how the government will proceed with its initiative.
Finally, when a decision has been made to proceed in a particular manner, government reports
must be provided to the community that was consulted. Regardless of the decision taken by the
Government, all stages in the consultation process, good faith on both sides is required. The
Government’s intention at all times must be to address the concerns as they are raised through a
process of meaningful consultation.
Limitations in the Saskatchewan Aboriginal Cumulative Impact with Regard to
Development.
Throughout the documentation on Policy with regard to consultation with Aboriginal people,
there is an explicit focus on Aboriginal concerns “relative to Treaty or Aboriginal rights to hunt,
fish, and trap for food purposes (their primary rights as noted by the province)2. While there are
referents in the documentation to “the adverse impact of the proposed action on Treaty or
Aboriginal rights,”, the focus is upon the above “rights.” Moreover, it is clearly articulated in the
documents that the Government of
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Saskatchewan retains decision-making authority. As such, this is a unilateral process that ensures
that the Government of Saskatchewan has the only and final decision making authority. The
actual role of Aboriginal people in decision making is left undefined.
Saskatchewan Environment recognizes the importance of traditional uses of land and
consultations will consider adverse impacts on such activities as gathering medicinal plants,
ceremonial and spiritual sites. However, commercial use of resources is not recognized as a
Treaty or Aboriginal right although Saskatchewan Environment will consider the potential
negative impact by action of the government. Saskatchewan also takes the position that social
and economic implications that flow from environmental and resource management decision and
action are not included in the duty to consult. Also, claims regarding title to land, jurisdiction,
delegation of authority, interpretation of Treaties and revenue sharing are defined as beyond the
scope of the duty to consult and outside the mandate of Saskatchewan Environment. However,
Saskatchewan Environment will document and refer these issues to First Nations and Metis
Relations, Industry and Resources, Saskatchewan Justice or Northern Affairs for a government
response.
The Government of Saskatchewan has agreed that there may be a need to accommodate adverse
impacts identified that are directly linked to protecting the continued exercise of rights and
traditional uses. This phrase extends beyond the narrow concept of “hunting, trapping and
fishing for food” that is commonly used in Aboriginal Policy. In this respect, the concept of
impact goes well beyond the narrow definition and would seem to focus on “the right to cultural
sustainability” in which there is a right to use the land in a way that would support their culture.
In short, there seems to be a crown obligation to support cultural sustainability. The concern over
“accommodation” emerges from this principle and links with a principle of the Saskatchewan
Government that focuses on the “honour of the Crown” and their acknowledgement that this
principle must be understood generously. Moreover, the duty to accommodate rests with the
Crown, not third parties.
To ensure that plans and activities by government, the private sector, industry, municipalities and
individuals are coordinated, the Saskatchewan Environment Department ensures that both
internal and external actors are identified with regard to
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their roles and responsibilities, address overlapping issues and avoid conflicts and duplication
and ensure appropriate documentation in joint consultations. Moreover, Saskatchewan
Environment develops specific processes as to what extent proponents of development will be
requested to engage with Aboriginal communities based on the “unique branch needs and
existing processes.” In short, without explicitly addressing the issue, it would seem that the
Government of Saskatchewan recognizes that even if lands “taken up” by the development are
small but the ecological impact of such development is large, this must be dealt with. For
example, if a road is build through a wetlands, one could argue that the “lands taken up” are
small relative to the overall area. However, the creation of a road constitutes a “dam” and as such
it may well have an impact on the ecology of hundreds of hectors of land and the animals that
reside within. As such, it would impinge upon the way of life of Aboriginal people.
The Saskatchewan government has articulated its commitment to work with Aboriginal
people by agreeing that First Nations and Metis rights and their interests in the use of natural
resources are to be met through cooperative means. They have given priority allocations to First
Nation people and northern Metis people who live a traditional lifestyle, after conservation needs
are met, in the use of fish and wildlife for food. However, they also agree to respect Aboriginal
traditions, knowledge, culture and values. Finally, their policy involve Aboriginal peoples in
department policy, program planning and environmental assessment initiatives where
appropriate. The extent to which this dimension of the policy has been enacted has not yet been
determined.
According to Aboriginal Policy, an analysis of development actions and any expected
infringement upon a recognized or asserted Treaty or Aboriginal right, must be given priority in
the development and planning of policy, programs , legislation and activities, e.g., priority over
commercial, recreational and other uses. At the local and regional level, Aboriginal peoples are
involved through co-management arrangements, partnerships and direct communication with
Aboriginal communities to determine their concerns and needs and to include their input into the
decision-making processes. Because of the lack of socio-economic resources, Aboriginal
communities can requests funds from the Government to support their capacity to effectively
participate in the process. A case by case decision will be made.
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Two other commitments emerge, not from definable policies, but from the basic principle that
social harmony and coo-operation are only possible with mutual respect and understanding: They
are:
(1) Respect for culture and traditions of Aboriginal peoples. This means that the contribution of
Aboriginal traditional local knowledge is integrated with science to make integrated and
informed decisions.
(2) Respect Aboriginal attachment to the land when implementing activities. This is enacted by
the Governments insistence that they need to encourage and facilitate Aboriginal participation in
renewable resource-based businesses, including:
(a) Major expansion of the province’s forest industry, largely in northern
communities, in partnership with aboriginal groups, industry and other groups across the
province.
(b) Employment and training members in forest fire management and
other aspects of forest management,
(c) Targeting Aboriginal groups and businesses when tendering contracts
and
(d) Aboriginal involvement in outfitting and other renewable
resources initiatives.
Summary
Overall, the Provincial Government of Saskatchewan has identified three major goals as part of
its Aboriginal policy with regard to renewable and non-renewable resource development.
1. Adopt a comprehensive ecosystem approach that considers all threats to the environment.
2. combine traditional knowledge and values with modern science.
3. Rehabilitate areas of concern within the region: This means protect, conserve and
revitalize the region eco-system.
Footnotes
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1 All Departments are encourage and expected to consult generally with all citizens (not just
Aboriginal) in the province that may impact upon those citizens.
2 Currently Metis Aboriginal rights to hunt, fish and trap for food purposes are recognized in
northern Saskatchewan. As such the duty to consult applies to these Metis communities.
However, Metis Aboriginal rights in southern Saskatchewan are not recognized within the
existing Aboriginal policy. Thus, Saskatchewan Environment does not recognize an obligation to
consult with Metis communities in southern Saskatchewan.
Bibliography
Government of Saskatchewan. 2006. The Government of Saskatchewan Guidelines for
Consultation with First Nations and Metis People: A Guide for Decision Makers, Regina,
Saskatchewan.
Government of Saskatchewan. 2007. Saskatchewan Environment Operational Procedures:
Consultation with First Nations and Metis People, Regina, Saskatchewan.
Government of Saskatchewan, 2007. Saskatchewan Environment and Resource Management,:
Aboriginal Affairs Policy Framework, Regina, Saskatchewan.
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