Engagement
Cultivating and maintaining a working relationship between a community (Indigenous or non-Indigenous) and a proponent (ex: organizations, businesses, industry, Crown corporations, government agencies) is called engagement. Engagement is “an ongoing and multi-faceted process undertaken between the project proponent and the communities affected by these activities” [10]. Having an open, respectful, communicative relationship benefits both parties by improving project outcomes and preventing misunderstandings and grievances. Because every project is set in a different environmental context, and communities have varied expectations, needs, and desires for level of involvement, it is impossible to provide a step
Illustration of how the prescribed legal duty to consult and accommodate might fit within the larger process of community engagement.
-by-step guide to productive engagement. It is up to the proponent and community to come to an agreement on what the best method of communication and engagement is. [Top of Page]
Why Should Companies Engage with Communities?
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Companies, or proponents, should engage with communities that reside within the vicinity of their work as an act of good faith and neighbourliness. Early and effective community engagement makes good business sense for proponents as it 1) reduces project risk and uncertainty, and 2) improves project outcomes. Understanding and fitting into the local community culture and community land use plans promotes greater business certainty, leads to more effective use of company resources, increases access to local labour, supplies, services and information, and decreases the risk of work delays and/or expensive adjustments later on [10]. Successful engagement will likely lead to community acceptance of the project and "social licence" for the proponent. [Top of Page]
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Table 1: Summary of potential proponent and community benefits incurred through engagement
Why Should Communities Participate in Engagement?
Participating in engagement benefits the community. For Indigenous peoples it is one avenue to ensure that treaty and constitutional rights are respected. For Indigenous and settler communities participating in engagement initiatives is one way to gain a greater understanding of the potential benefits and impacts of a proposed project. Understanding the proposal allows communities to find areas of potential economic benefit (ex: employment, business, creative entrepreneur opportunities, impact-benefit agreements). Being informed of potential negative impacts allows communities to request changes to the proposal so that development will align more closely with local land use and/or community development plans. [Top of Page]
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What Does Engagement Look Like?
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Engagement may involve a range of activities and interactions such as contacting community leadership, town hall gatherings, social media, letters, business meetings, and festivals. While engagement practices are different in each community, the common thread to effective engagement is building and maintaining relationships. “Successful” engagement leads to the creation and maintenance of a trusting, respectful, and communicative relationship between communities and the proponent. “Poor” engagement creates a situation in which neither party is comfortable with the other and may feel misunderstood, irrelevant or in the worst case, threatened. There are many ways to carry out engagement, and the success of engagement can only be judged on the strength of the working relationships going forward. Engagement is the good practices of neighbours working with one another; it does not encompass the legal duty to consult and accommodate as laid out in the Treaties and the Canadian Constitution Act. [Top of Page]
Duty to Consult and Accommodate
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As discussed above engagement is an ongoing, voluntary practice of relationship building and regular communication between a proponent and a community – both non-Indigenous and Indigenous. Engagement is quite broad, and is generally considered to be an “interest-based” process. Stakeholders and the public have an interest in developments going on around them. Proponents engage with local stakeholders and the public in order to maintain social licence to operate. Engagement is quite common and is often considered to be a standard part of business operations.
The duty to consult and accommodate, however, is a “rights-based” process grounded in binding treaties made between Indigenous Nations and the Crown (Canada) to share the land. This legal consultation process is only carried out between First Nation and/or Métis leadership (government) and the Canadian Federal or Provincial Government, in situations where there is the potential to affect treaty or Indigenous rights protected by the constitution. Indigenous rights are distinct from stakeholder rights and include the right to maintain cultural practices (ceremonies, land based activities) and traditional ways of making a living (hunting, trapping, gathering plants and medicines). The government is legally required to work with Indigenous community leadership to find a satisfactory arrangement before proponent activities can occur [8,9].
While community engagement activities may eventually feed into legal consultation these are two distinct practices. Often, engagement of Indigenous communities takes the form of early communication and dialogue about project proposals. These exchanges may eventually lead to consultation if Indigenous rights will be impacted by proposed development. [Top of Page]
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What is the Duty to Consult and Accommodate?
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The duty to consult and accommodate is a legal requirement, and “rights-based” process, that arises from treaty agreements made between Indigenous Nations and the Crown (Canadian government). Treaty rights and inherent Indigenous rights have been recognized, affirmed and enshrined in Section 35 of the Canadian Constitution (1982). This means treaty agreements are an active part of Canadian life. The government and Indigenous peoples have sometimes disagreed over how treaty commitments are to be kept, specifically around Indigenous hunting, trapping, fishing, and gathering (protected rights under Section 35) which are important ways of making a living. When these disagreements cannot be worked out between the parties they are taken to the Canadian courts.
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Over the past 40 years, the Supreme Court of Canada has made a number of rulings which have led to the legal duty to consult and accommodate process. Ultimately the duty to consult and accommodate is rooted in the honour of the Crown/government to uphold its treaty promises to Indigenous peoples, and to abide by the Constitution [11,15,16]. Specifically, the Supreme Court has articulated that any proposed action must first pass a Justification Analysis (R v Sparrow, 1990; R vs Badger, 1996; Delgamuukw v British Columbia, 1997). The three major points that must be satisfied for an action to be deemed justified are:
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“(a) questions of whether there has been as little infringement as possible in
order to effect the desired results;
(b) whether in a situation of expropriation, fair compensation was available; and
(c) whether the Aboriginal group in question had been consulted with
respect to the conservation measures implemented” [11]
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Secondly, the Supreme Court has ruled that the minimum actions required for consultation and accommodation (i.e. the protection of treaty and Indigenous rights) are as follows:
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“(1) The Crown must provide notice of the proposed infringement and
engage directly with the treaty nation in question;
(2) The Crown has a duty to disclose relevant information in its
possession regarding the proposed development or decision;
(3) The Crown is under an obligation to inform itself of the impact of a
proposed project on the treaty nation in question;
(4) The Crown must communicate its findings to the affected treaty nation;
(5) The Crown must, in good faith, attempt to substantially address the
concerns of the treaty nation;
(6) The Crown cannot act unilaterally;
(7) Administrative inconvenience does not excuse a lack of meaningful
consultation;
(8) The Crown must solicit and listen carefully to the expressed concerns
and attempt to minimize the adverse impact on the treaty interests; and
(9) The concerns of the treaty nation must be seriously considered by the
Crown and ‘whenever possible, demonstrably integrated into the
proposed plan of action.’”
(Mikisew v Canada [Minister of Canadian Heritage][2005])
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Through these Court decisions it is evident how the framework of today’s duty to consult and accommodate process has evolved. This process is intended to ensure that Indigenous interests are taken seriously, and their rights upheld.
Although Indigenous rights must be preserved, Indigenous peoples do not have the power to veto governmental decisions [11]. However as noted previously, government decisions can be overturned by the Courts if they fail to fulfil the honour of the Crown and the duty to consult and accommodate.
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Originally the Federal Government of Canada was responsible for upholding all aspects of treaty right (the duty to consult and accommodate). However after the Natural Resources Transfer Agreement (1930), provincial governments became responsible for the duty to consult and accommodate as it pertains to provincially regulated projects (i.e. natural resource projects, or projects on lands administered by the province)[8,9]. The Federal Government retains the duty to consult on federal decisions and actions.
While it is the government’s responsibility to fulfill the duty to consult, it may delegate some aspects of consultation to industry partners (ex: communicating information about the project, consulting on ways to mitigate potential negative impacts) [11]. This means that electric utilities and other proponents are often required to fulfill some aspect of the duty to consult when working near Indigenous communities or within Indigenous traditional territory [8,9]. [Top of Page]
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Triggering the Duty to Consult and Accommodate
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The duty to consult and accommodate is triggered when government decisions and/or proponent actions have the potential to adversely impact:
“1. Treaty and Aboriginal rights, such as the right to hunt, fish and trap for
food on unoccupied Crown lands and other lands to which First Nations
and Métis have a right of access for these purposes; and
2. Traditional uses of lands and resources, such as the gathering of plants
for food and medicinal purposes and the carrying out of ceremonial and
spiritual observances and practices on unoccupied Crown lands and other
lands to which First Nations and Métis have a right of access for these
purposes.” [12]
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It is imperative for the consultation to occur in the manner it was intended, both to uphold the honour of the Crown and to ensure a stable social and business environment. According to the Government of Saskatchewan, objectives of the duty to consult and accommodate include:
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“1. To respect and protect Treaty and Aboriginal rights by ensuring, through
the consultation process and subsequent decisions, that negative impacts
on these rights and uses are avoided, minimized or mitigated and rights
are accommodated, as appropriate;
2. To advance the process of reconciliation between Aboriginal and non-
Aboriginal peoples and their respective claims, interests and ambitions; and
3. To promote certainty, predictability and a stable, secure investment climate
for the residents of Saskatchewan, including First Nation and Métis
communities.” [9, pg 3].
Consultation and accommodation procedures are specifically laid out and can be found on the Government of Saskatchewan [9] and Government of Canada [8] websites. [Top of Page]
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Accommodation
The Canadian government must accommodate Indigenous rights. Once it is known that Indigenous rights may be impacted by a proposed activity steps must be taken to avoid causing negative impacts, minimize or mitigate negative impacts or to compensate for unavoidable impacts to rights. Accommodation can take many forms and acceptable accommodation is worked out between parties during consultation discussions. [Top of Page]
Evolution of Treaties and the Duty to Consult and Accommodate: A Brief History of Indigenous-European Relationships
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​**Although this summary was taken from a well-researched and reputable source it does not include a full history of treaty, nor important nuances or details of recent court rulings. We recommend further reading on this very important subject.**
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Impact of the Fur Trade on Treaty Making
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The socio-economic relationship developed between Indigenous peoples in Saskatchewan and trading companies (1700-1800s) greatly influenced how treaty making was conducted. Ceremonies that were enacted before trading to symbolize relationship were also used during treaty making, and the socio-economic system developed between traders and Indigenous people became the template for clauses in the numbered treaties [12].
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During the 1700s the lives of European traders and Indigenous people became closely linked. Dominance in the North American fur trade was an important part of Old World politics that European countries could not afford to lose. Indigenous people had become used to having European trade goods and help from the trading post in times of crisis, such as epidemics of European diseases, injury, old age and other situations that might prevent successful hunting (i.e. making a living). Some Indigenous people were working directly for trading companies for wages [12].
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Trading companies competed with one another, in an effort to get the most furs, by offering extra benefits to Indigenous people as trade incentives. They gave gifts during trading (ex: coats to chiefs or headmen, luxury foods to the whole group), and provided European medicines when people were sick with European diseases. They gave ammunition and other items on credit to individuals who had had a bad year hunting, or who were old and injured. This ensured that Indigenous people could continue working and return the next year to trade. This socio-economic system worked well and was very important to both Indigenous and European parties. The relationship build through trade is reflected in treaty agreements [12].
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In the 1800s, things began to change. Fur bearing animals had been over hunted and were getting hard to find (1820s onwards). Thousands of Indigenous people got sick from epidemic European diseases, with an estimated one third in Saskatchewan dying during the 1870s smallpox outbreak. New businessmen running the Hudson Bay Company (HBC) were more interested in building farms and towns than trading furs (1863 onwards). The increasing numbers of settlers and Metis moving into Saskatchewan changed the landscape and put pressure on resources already stretched too thin. In 1867 Canada became it’s own country (British North America Act) and bought all of Rupert’s Land from the HBC, even though it wasn’t theirs to sell (Rupert’s Land Act, 1868)(Rupert’s land is in pink on the map). Everyone was worried about war (ex: War of 1812, Red River Resistance 1869)[12].
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All these changes and uncertainty made both parties nervous about the future. Indigenous peoples wanted to protect their culture, land rights, and traditional livelihoods, and to be able to participate in the emerging economy. The Canadian government worried about war and wanted to be able to expand as a country and to use resources across the continent (farming, ranching, lumbering, mining, building railroads, etc.). Both the Canadian government and Indigenous leaders wanted to find a way for their people to live prosperous lives in the future. So Canadian government representatives (Treaty Commissioners) and Indigenous Chiefs negotiated and signed treaties [12].
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Treaty making started in Eastern Canada and moved west. Saskatchewan is covered by Treaties 2, 4, 5, 6, 8, and 10. Treaties deal with topics such as land sharing (Indigenous-only reserves, and European settlements), knowledge sharing (education, medicine, and help starting farms), peaceful relations (no war, obeying Canadian laws), and disaster aid in cases of starvation and epidemics. [Top of Page]
Treaty 6 & 10
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The Royal Proclamation of 1763, issued by King George III of Britain, recognized Indigenous peoples’ rights to all lands that had not been ceded or purchased from them. This proclamation entrenched the government’s need to treat with Indigenous peoples before settlement or use of their land could occur [1,2]. Fur traders also recognized inherent Indigenous control over the land. In 1680 the Hudson Bay Company already understood that to run a peaceful and profitable business it must negotiate access and trading rights before operating in various First Nations’ traditional territory [12, pg 31]. One governor told post commanders:
“Endeavor to make such Contracts with the Natives for the River in & above Port Nelson [York Factory] as may in future times ascertain to us a right & property therein and the Sole Liberty of trade & Commerce there” [12, pg 4]. [Top of Page]
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Treaty 6
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Office of the Treaty Commissioner treaty maps.
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The 1869-70 purchase of Rupert’s Land by the Crown from the Hudson’s Bay Company caused concern and puzzlement among First Nations in what is today southern Alberta and Saskatchewan. They were already facing food shortages due to the decimation of plains bison herds, and feared increased pressures from white and Metis settlers pushing west. In 1871 they began asking to treat with the government in an effort to stave off starvation, and protect their way of life. However, the government wished to proceed slowly with treaties (Treaties 1-5 concluded between 1871-1875), and it was not until the Cree stopped survey crews and threatened to stop the telegraph workers setting line from Winnipeg to Edmonton in 1875 that the government agreed [5,6].
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Treaty 6 was negotiated at Fort Carlton, SK on Aug. 23, 1876, Duck Lake, SK on Aug. 28, 1876 and Fort Pitt, SK on Sept. 9, 1876. Signing for the Crown was Lieutenant Governor of Manitoba and the Northwest Territories Alexander Morris, Honourable William Joseph Christie, and Honourable James McKay. Notable First Nations adherents were Chiefs Ahtukukoop and Mistawasis at Fort Carlton and Chief Weekaskookwasayin (Sweet Grass) at Fort Pitt. Notable dissent to signing came from Pitikwahanapiwiyin (Poundmaker; a Chief in the 1880s) at Fort Carlton and Chief Mistahimaskwa (Big Bear) at Fort Pitt. Fourteen adhesions were signed in the years spanning 1877 – 1956. Notable adhesion adherents included Chief Minahikosis (Little Pine) on July 2, 1879 and Chief Mistahimaskwa Dec. 8, 1882, both at Fort Walsh [5,6,7].
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From the treaty, First Nations sought to gain relief from settlement pressures, the very real threat of starvation, and epidemic diseases. The Crown wanted to gain title to land which would give them unhindered access for development [5,6,7]. Interestingly, during the negotiations the cessation of land title was never specifically discussed. Although it was included in the reading of the Treaty before proceedings concluded. Three theories for this are that either land cessation was obvious and assumed, the concept was thought too hard to explain as the First Nations did not have a comparative concept in their culture [5,6], or commissioners purposefully avoided the discussion.
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Through Treaty 6 the Crown gained title to approximately 313,000 square kilometers of land in central Saskatchewan and Alberta, a promise of unhindered travel and building within the newly acquired land, the promise of peace within First Nations groups, and between various First Nations and immigrants. The First Nations also promised to be loyal, law-abiding subjects of the Queen [5,6,7].
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In return for limiting their land rights, the First Nations were given reserve land according to band size (approximately 2.6 square kilometers per family of five), schools on the reserves, an annuity (yearly cash payment), a one-time cash gift, annual ammunition and twine allotments (i.e. hunting and fishing supplies), equipment, tools, seed and livestock for farming and ranching (if desired), a medicine chest kept at the Indian agent’s house, relief aid in times of famine and pestilence, the right to continue harvesting throughout their traditional territory and the promise of no interference with their current mode of living. This agreement allowed First Nations to maintain their way of life and to increase their skills through schooling and agricultural training [5,6,7].
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One large difference in understanding between Treaty parties was, and is, over land title. While Europeans representing the Crown understood there to be a total cede and surrender of land title and rights, it is most likely that First Nations groups understood and only agreed to a sharing of the land and it’s resources so that both parties could prosper [5]. [Top of Page]
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Treaty 10
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Office of the Treaty Commissioner treaty maps.
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Treaty 10 was negotiated in 1906-07 when the government was pressured to settle Metis land claims, and due to the creation of Saskatchewan and Alberta as provinces in 1905. This treaty covers 220,000 km2 in northern Saskatchewan and a small portion of northeastern Alberta [1,2]. Through Treaty 10 the federal government, all Canadian immigrants, and future non-Indigenous generations gained access to the land (excepting reserve and land in severalty), the right to develop the land (open for settlement, immigration, trade, travel, mining, lumbering, etc.), the right to build public works on reserve lands, freedom from war with First Nations and Metis peoples, the promise of peace between First Nations groups, and the agreement to obey and abide by Crown law. The Metis gained scrip (a land allotment) or a one-time payment of $240. First Nations peoples gained reserve land in accordance with band population, or land in severalty as individuals (a smaller private plot on the reserve), the right to continue their livelihood of hunting, trapping and fishing throughout off reserve territory (subject to occasional government regulation), a cash gift for signing (also a medal, flag and clothes for chiefs and headmen), an annuity (yearly cash payment), annual provisions of twine and ammunition (i.e. fishing and hunting supplies), and an ambiguous promise of provision for child education, assistance with farming and live-stock production (if desired), medicine, and support for the elderly and destitute [1,3,4].
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One large difference in understanding between Treaty parties was, and is, over land title. While Europeans representing the Crown understood there to be a total cede and surrender of land title and rights, it is most likely that First Nations groups understood and only agreed to a sharing of the land and it’s resources so that both parties could prosper [3]. [Top of Page]
Recommended Further Reading
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Bounty and Benevolence: A History of Saskatchewan Treaties. By Ray Arthur, Jim Miller and Frank Tough. 2000. McGill-Queen’s University Press. Montreal & Kingston.
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Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada. By Jim R. Miller. 2009. University of Toronto Press. Toronto.
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References
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[1] Coates KS. 1986. Treaty Research Report - Treaty No. 10 (1906). Treaties and Historical Research Centre, Indian and Northern Affairs Canada. http://www.aadnc-aandc.gc.ca/eng/1100100028866/1100100028868 Accessed April, 2017, on the Government of Canada, Indigenous and Northern Affairs Canada website.
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[2] Hall AJ, Albers G. 2015. Royal Proclamation of 1763. The Canadian Encyclopedia. Historica Canada. http://www.thecanadianencyclopedia.ca/en/article/royal-proclamation-of-1763/ Accessed April 2017.
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[3] Tesar A. 2016. Treaty 10. The Canadian Encyclopedia. Historica Canada http://www.thecanadianencyclopedia.ca/en/article/treaty-10/ Accessed April 2017.
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[4] Duhamel R. 1966. Treaty No. 10 and Reports of Commissioners. Queen’s Printer and Controller of Stationery, Ottawa. Cat. No.: ci 72-1066, IAND Publication No. Qs-2048-000-ee-a-11. http://www.aadnc-aandc.gc.ca/eng/1100100028866/1100100028868 Accessed April 2017 on the Government of Canada, Indigenous and Northern Affairs Canada website.
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[5] Taylor JL. 1985. Treaty Research Report - Treaty Six (1876). Treaties and Historical Research Centre, Indian and Northern Affairs Canada. http://www.aadnc-aandc.gc.ca/eng/1100100028702/1100100028704 Accessed April, 2017, on the Government of Canada, Indigenous and Northern Affairs Canada website.
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[6] Filice M. 2016. Treaty 6. The Canadian Encyclopedia. Historica Canada. http://www.thecanadianencyclopedia.ca/en/article/treaty-6/ Accessed April 2017.
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[7] Duhamel R. 1964. Copy of Treaty No. 6 between Her Majesty the Queen and the Plain and Wood Cree Indians and other Tribes of Indians at Fort Carlton, Fort Pitt and Battle River with Adhesions. Queen’s Printer and Controller of Stationery, Ottawa. Cat. No.: R33-0664, IAND Publication No. QS-0574-000-EE-A-1. http://www.aadnc-aandc.gc.ca/eng/1100100028702/1100100028704 Accessed April 2017, on the Government of Canada, Indigenous and Northern Affairs Canada website.
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[8] Government of Canada, Ministry of the Department of Aboriginal Affairs and Northern Development Canada. 2011. Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult - March 2011. http://www.aadnc-aandc.gc.ca/eng/1100100014664/1100100014675 Accessed April 2017, on the Government of Canada website.
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[9] Government of Saskatchewan. 2010. First Nation and Metis Consultation Policy Framework. http://www.saskatchewan.ca/residents/first-nations-citizens/duty-to-consult-first-nations-and-metis-communities Accessed April 2017, on the Government of Saskatchewan website.
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[10] Saskatchewan Mineral Exploration and Government Advisory Committee. 2012. Mineral Exploration Guidelines for Saskatchewan 2012. Government of Saskatchewan, Ministry of Environment.
http://www.environment.gov.sk.ca/MineralExplorationGuidelinesForSaskatchewan2012 Accessed April 2018.
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[11] Morellato M. 2008. The Crown's Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights. National Centre for First Nations Governance. http://fngovernance.org/resources_docs/Crown_Duty_
to_Consult__Accommodate.pdf Accessed April 2018.
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[12] Ray AJ, Miller J, Tough FJ. 2000. Bounty and Benevolence: A History of Saskatchewan Treaties. McGill-Queen's University Press. Montreal & Kingston. (Chapters 1, 2, 4 and 6 most pertinent).
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[13] Pelletier R. 2017. A Primer on the Constitutional Duty to Consult. Olthuis, Kleer, Townsend LLP. Toronto, ON. http://www.oktlaw.com/drive/uploads/2017/03/OKT-Primer-on-Consultation-v2.pdf Accessed April 2018.
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[14] Gray B. 2016. Building Relationships and Advancing Reconciliation Through Meaningful Consultation. Government of Canada, Department of Indigenous and Northern Affairs Canada. https://www.aadnc-aandc.gc.ca/eng/1498765671013/1498765827601 Affairs Accessed April 2017, on the Government of Canada website.
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Last Updated: April 2018