----- Original Message -----
From: Julia Gardner
To: tilcepa@...
Sent: Wednesday, April 06, 2005 5:55 AM
Subject: RE: [CMWG] FW: [TILCEPA] DO PEOPLE WHO LIVE IN THE RAINFOREST
HAVETHERIGHT TO SAVE IT?







Some comparative information from the northern temperate rainforest:



In British Columbia, "free and informed consent" of indigenous peoples is not
necessarily required for resource exploitation in their traditional territories.
However, Canadian courts are making it increasingly clear that the First Nations
must be consulted prior to major decisions affecting the resources in their
traditional territories.



I found a useful summary of the situation here by a lawyer experienced with
First Nations law in BC, Nancy Morgan, at
http://www.nativemaps.org/Referrals/legal/obligation.html

Although the article is dated 2002, more recent court cases are mentioned by the
author, where I insert [2005] in the text. I have pasted below most of the
article from the site - formatting may well be lost in the transition.



THE STATE OF THE LAW ON THE OBLIGATION TO CONSULT WITH FIRST NATIONS (August
2002)
by Nancy Morgan, Morgan & Associates

The purpose of this short paper is to provide those working for First Nations on
referrals with a brief overview of the current state of the law on the
obligation to consult with First Nations. Unfortunately, since the law is not
frozen in time, this information may be out of date by the time you read it.

Over the last decade, the courts have reaffirmed and clarified the governments'
obligation to consult with First Nations in a number of important cases,
including Sparrow and Delgamuukw and, more recently [2005], the Taku River
Tlingit and the Council of the Haida Nation cases.

The roots of the obligation to consult lie in the special relationship that
exists between the federal and provincial governments on one hand and First
Nations on the other. This relationship is described as "trust-like" or
"fiduciary" in nature, which means that the governments have to act as if they
were trustees and always keep the First Nations' interests foremost in their
minds. Certain federal and provincial laws also impose an obligation on
governments to consult with First Nations. This means that the obligation may
have more than one source. For example, the provincial government may have to
meet two sets of rules regarding consultation - one under a law such as the
Forest Act or Environmental Assessment Act and another arising from its special
relationship with First Nations.

The obligation to consult arises in circumstances where the federal or a
provincial government is proposing to make a decision or take an action that may
infringe (i.e. negatively impact) on a First Nation's aboriginal rights,
including aboriginal title. In order for the government to justify its decision
or action, it must show that it has a substantial and compelling reason for its
decision or action. Secondly, it must show that the decision or action is
consistent with the special fiduciary relationship between government and First
Nations. As part of meeting the second part of the justification test, the
government must show that it has consulted with the First Nation in a meaningful
and effective way.

Some of the key points with respect to the obligations that arise from
Delgamuukw and other important cases are as follows:

· The federal and provincial governments have a legally enforceable
obligation consult with First Nations whenever the governments' decisions or
actions may infringe on a First Nation's aboriginal rights, including aboriginal
title.

· Third parties, whose activities may potentially infringe on a First
Nation's rights, also have a legally enforceable obligation to consult with that
First Nation and seek workable accommodations with that First Nation. Their duty
to consult is similar to, but separate from, government's duty and extends to
their day-to-day activities and operations.

· Government and third parties (such as industry or developers) must
consult in a manner that is meaningful and effective. They must carry out their
consultation with utmost good faith and the intention of substantially
addressing the First Nation's concerns. In particular, they must accommodate the
First Nation's cultural and economic interests, including its aboriginal title
and rights. (For a more complete description of the obligation, see the excerpt
from Delgamuukw set out at the end of this section.)

· The extent of the obligation to consult varies with the circumstances
and ranges from consultation to consent depending on the type of First Nations
rights that may be infringed upon and how serious the infringement is likely to
be.

· Governments and third parties must consult with First Nations that
have specifically claimed aboriginal rights, about potential infringements,
before the aboriginal rights have been confirmed in a court decision or a
treaty. This means that a First Nation does not have to prove the existence and
scope of its aboriginal rights in the affected area before the obligation to
consult arises. It need only show that there is a good chance that it has
aboriginal rights in the area in question.

· Consultation generally requires that government and third parties
fully inform a First Nation about a proposed decision or action and seek
information from the First Nation about the impact of such an decision or action
on the First Nation's rights or interests. The First Nation must be given the
opportunity to provide such information. Then, government and third parties must
assess this information to determine the likelihood of the decision or action
infringing on the First Nation's rights and interests. Finally, government and
third parties must seriously consider whether there are ways to avoid infringing
or otherwise accommodate the First Nation's rights and interests.

· The obligation to consult with First Nations whose treaty rights may
be infringed by a decision or action is "if anything, more obvious where
[government] has reduced its solemn promises to writing". This means the
obligation to consult is usually clearer where a treaty has been signed because
it is easier to prove the existence and scope of rights that are set out in
writing and agreed to in a treaty.

· First Nations cannot refuse to be consulted and then argue that a
decision was not properly made because they were not consulted. However, First
Nations are entitled to a process that is separate from the regular public
consultation process (such as open house sessions and public forums). Once First
Nations have had the opportunity to review the relevant information, they then
have an obligation to express their interests and concerns.

· The outcome of a court challenge regarding the infringement of an
aboriginal right by a decision or an action of government or a third party will
likely be determined by the court's conclusions on the likelihood and extent of
the potential infringement and the quality of consultation and accommodation.

· The courts have occasionally ordered governments to pay First Nation's
court costs in cases involving the obligation to consult in advance of trial
because of the exceptional nature of the cases. First Nations may advance the
argument that governments and third parties should similarly be obliged to
assume a First Nation's costs of participating in consultation processes.







*************************************************



Julia ("Julie") Gardner, Ph.D.

Dovetail Consulting Inc.

105-2590 Granville St. Vancouver BC V6H 3H1

Phone: (604) 737-6868 Fax: (604) 737-2607

<http://www.dovetailconsulting.com>






--------------------------------------------------------------------------------

From: Christopher Vaughan [mailto:c.s.vaughan@...]
Sent: Thursday, 31 March 2005 14:40
To: tilcepa@...
Subject: [TILCEPA] DO PEOPLE WHO LIVE IN THE RAINFOREST HAVE THE RIGHT TO SAVE
IT?



DO PEOPLE WHO LIVE IN THE RAINFOREST HAVE THE RIGHT TO SAVE IT?
---------------------------------------------------------------
(29 mar 2005) Ecuador's Sarayaku Indians have asked an international
court to rule that governments cannot unilaterally grant concessions
to companies to exploit natural resources such as oil, gas, mining

or timber without the free and informed consent of the indigenous
communities that occupy the land. The Sarayaku dispute an
Argentina-based oil company's right to explore approximately 250,000
acres of their territory for oil.
http://us.oneworld.net/link/gotoarticle/addhit/108535/7263/19186
From: Advocacy Project
http://www.advocacynet.org

Kit Vaughan
PhD Student
Department For International and Rural Development
University of Reading
Box 237 Whiteknights Road
Berkshire RG6 6AR



c.s.vaughan@...
Dept. Tel 0118 3788119
Personal Tel 07778525816 Tel fax 01308482592



For results of the three year WILD project Wildlife and livelihoods research
see:
http://www.dea.met.gov.na/met/programmes/Wild/wild.htm





======================
* To REPLY TO THE INDIVIDUAL SENDER of this message please hit REPLY
* To REPLY TO THE WHOLE LIST please address CMWG@...
* To contact the LIST ADMINISTRATORS please send to CMWG_owner@...
* To unsubscribe for a limited period send an e mail to
CMWG-suspend@... and specify in the message text: for XX days
(substitute the number of days you wish to be suspended)
* To see the content of the archive send to listadmin@... and
specify in the message text:
dir CMWG
* To obtain a file from the archive send to listadmin@... and
specify in the message text: get CMWG filename.doc
* To receive only a daily digest of the list messages send to:
listadmin@... and specify in the message text:
Set CMWG youraddress@xxx.xx
Digeston
* To discontinue the digest, please do the same and substitute "off" with "on"
above.

Web interface for this list: http://indaba.iucn.org:1276/listlogon.mml
List Archives may be read here: http://indaba.iucn.org:1276/readlistarchives.mml

This message was sent to you at: jgardner@...

All email messages are scanned for viruses.



===============

If you wish your reply to this message to go to ALL MEMBERS of the List, please
HIT THE REPLY BUTTON. For individual replies, please use the individual
addresses. To contact the list administrators send a message to:
TILCEPA-owner@...

To leave this list, send a blank message to:
mailto:TILCEPA-leave@...
To get a list of files available to you: tilcepa-dir@...

Web interface for this list: http://indaba.iucn.org:1276/listlogon.mml

This message was sent to you at: kvriksh@...

All email messages are scanned for viruses.

The services and facilities to support this list are provided by The Information
Management Group, IUCN, Gland, Switzerland.


[Non-text portions of this message have been removed]