Legal
Legal
When the Haudenosaunee and the first colonist to arrive made the original agreement on our treaty relationship, it was about sharing the natural resources on this great land. That seventeen-century agreement is the foundation of our Haudenosaunee Land Use Strategy of today. By agreement, we established a way to share, respect each other, and resolve disputes peacefully
Those principles still apply today, however, when those first agreements were made, the waters were clean and healthy. All fish could be eaten. The birds, plants, and animals were plentiful. Now we face an environmental holocaust that threatens human existence. This is not acceptable. Our land, water and biological systems have been polluted by unchecked growth. Endangered ecological communities and species are declining as a result of current land clearing, and also as a consequence of the fragmentation and degradation resulting from past clearings. Our goal is to restore sanity to the use of the land, realizing that what we do today determines the well-being of the future generations. It is with them in mind that we establish this plan for Haudenosaunee Land Use Agreements.
In Haudenosaunee tradition, the Earth is our mother. It is said that we should treat the Earth with kindness and respect, because our walking upon her is like walking upon the face of our own mother. It is also said that we should walk gently upon the Earth, for we are treading on the faces of our own unborn generations.
Haudenosaunee law seeks balance in everything. Every authority is balanced by responsibility. This sense of balance extends to the use of land: the authority to use land or resources includes the responsibility to protect them.
Haudenosaunee law acknowledges the land and livings things, not as a resource or assets intended for the use and enjoyment of humans, but as vital parts of a larger circle of life, each entitles to respect and protection. In Haudenosaunee thought, it is not possible to separate ‘land’ from the rest of the circle of life – the waters, grasses, medicine plants, food plants, berries and trees, the insects, animals, birds and people; the winds and other unseen forces that benefit the world. Our relationship with all these is one of gratitude and humility. We acknowledge that each part of the natural world seeks to fulfill its responsibility, as we humans do.
Duty to Consult
Requirement by Inherent Rights
This land was entrusted to us by the Creator long before Provincial, Canadian, and Municipal policies were imposed. While these impositions of settler structures acknowledge our governance over Haudenosaunee traditional territories, they cannot confine the breadth of our sovereignty.
Consent for development on our territory is granted only when proponents engage fully and respectfully with HDI, beginning at the earliest stages and continuing through every step of the process. Projects that fail to meet these standards are considered unlawful, contributing to the ongoing cultural genocide that threatens the preservation and resilience of our lands for future generations.
All development must adhere to the Haudenosaunee Green Plan and 8 points of jurisdiction.
Requirements By Federal Government
Section 35 of the Constitution Act, 1982
Section 35 protects Aboriginal and treaty rights, including rights to land, self-governance, cultural practices, and traditional resource use. When government actions or decisions (e.g., resource development, infrastructure projects) have the potential to impact these rights, Section 35 triggers the Duty to Consult to ensure that consent is obtained and rights are not unjustifiably infringed. Any development that has not received consent on Haudenosaunee territory is in direct infringement of this right and will be dealt with to the highest extent.
Federal UNDRIP Implementation Act
On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP) received Royal Assent and immediately came into force. The Act creates avenues for the Haudenosaunee to preserve and uphold their laws, values, and ways of life within Canada’s legal and political systems. Additionally, UNDRIP serves as a foundational international human rights instrument for guiding the interpretation and application of Canadian law, while offering a framework for its federal implementation.
UNDRIP includes several provisions that are directly relevant to the Duty to Consult, such as the application of free, prior, and informed consent (FPIC). More specifically, FPIC is referenced in article 32(2) of UNDRIP which states, “Governments must consult and cooperate in good faith with Indigenous peoples to obtain their free, prior, and informed consent before approving projects that affect their lands, territories, or resources.”
By integrating UNDRIP principles, the Crown’s obligations must comply with international standards, further strengthening the enforcement of Haudenosaunee laws within the broader Canadian legal framework.
Impact Assessment Act
The Impact Assessment Act acknowledges the unique constitutional relationship between the Crown and the Haudenosaunee people, as well as their distinct perspectives and interests in development projects. Additionally, the act also provides the legal framework for environmental and socio-economic impact assessments in Canada while also assigning powers to different levels of government and decision-making authorities.
One of these decision-making authorities is the Impact Assessment Agency of Canada, which is responsible for overseeing federal impact assessments and ensuring that Indigenous consultation is conducted in a meaningful and transparent manner. This includes facilitating engagement with Indigenous governments and organizations, integrating Indigenous knowledge into assessments, evaluating potential impacts on Indigenous rights and lands, and ensuring that the Crown fulfills its duty to consult and accommodate before project approvals are granted.
The Impact Assessment Act is triggered when a proposed project is expected to have a significant adverse impact on Section 35 rights under the Constitution Act, 1982. This includes any project that could affect Indigenous traditional lands, cultural practices, or treaty rights.
Case Law
Tsilhqot’in Nation v. British Columbia 2014 (William’s Decision)
The Williams decision is a precedent-setting case that sets the framework for asserting Indigenous title on inherent territories. The criteria from the Williams decision—sufficiency, continuity, and exclusivity—extend Indigenous title beyond mere physical presence, recognizing it through traditional activities such as hunting, fishing, and trapping. Criteria for title can also be supported by evidence of a sustained, exclusive relationship predating European colonization.
The jurisdiction of the Haudenosaunee Confederacy which is described, but not limited to the territory under the Haldimand Proclamation, the 1701 Nanfan Treaty Area and the Mitchell Map, meets the criteria set forth by William’s Decision. All developments within the inherent lands of the Haudenosaunee are required to obtain consent from HDI before construction begins as the Williams decision can be used to assert indigenous title.
Grassy Narrows First Nation v. Ontario 2014 (Keewatin decision)
This is a precedent-setting decision that clarifies the role of the Province and Municipalities when it comes to the Duty to Consult and Accommodate. The Keewatin decision confirmed that the Province, Municipality and Federal government are responsible for obtaining free prior and informed consent when development decisions are made that could impact indigenous treaties and inherent rights.
This means that when Ontario (or any province) develops within treaty land for development, it must consult and accommodate the affected Indigenous nations. The Crown must engage in meaningful consultation to ensure that treaty rights, such as the right to hunt, fish, and trap, are not unjustifiably infringed.
Kebaowek First Nation v. Canadian Nuclear Laboratories
In this precedent-setting case, federal courts sided with the Kebaowek First Nation on the stance that the United Nations Declaration of Rights for Indigenous Peoples (UNDRIP) and its effect on the Crown’s obligation to consult and accommodate were not considered when amending CNL’s operating licence to handle nuclear waste. This ruling guides the effect of UNDRIP in Canadian law as “an interpretative lens to be applied to determine if the Crown has fulfilled its obligations …” Therefore, Section 35 rights, and the obligations of the Crown to consult and accommodate, must be interpreted to conform with UNDRIP.
With UNDRIP’s adoption into Canadian law, the content of the Crown’s duty to consult obligations is more robust when the UNDRIP Free Prior and Informed Consent standard is invoked. This ruling emphasizes the need for a deeper level of consultation negotiations geared towards achieving a mutually accepted agreement. Negotiations must be tailored to consider the impacted laws, knowledge and practices of the affected nation.
In this case, the court unequivocally affirms that UNDRIP applies to the Crown’s obligations under Section 35 and must be implemented in a manner consistent with its principles. At a minimum, this necessitates meaningful consultation that incorporates the Indigenous perspective with the goal of achieving mutual agreement.
Requirements By Province
Provincial Planning Statement:
The Provincial Planning Statement serves as Ontario’s consolidated land use planning policy framework and is designed to work in harmony with various provincial statutes, including the Ontario Heritage Act, Planning Act, Aggregate Resources Act, and Environmental Assessment Act.
Section 4.6(5) of the Provincial Planning Statement states “planning authorities shall engage early with Indigenous communities and ensure their interests are considered when identifying, protecting and managing archaeological resources, built heritage resources and cultural heritage landscapes”
This clause within the Provincial Planning Statement aligns with the principles underpinning the Duty to Obtain Consent by requiring early and meaningful engagement with the Haudenosaunee. Under provincial law, planning authorities must meet their delegated responsibilities to engage with the Haudenosaunee when development is within jurisdiction and when rights and interests are affected.
Ontario Heritage Act
The Ontario Heritage Act plays a key role in the Duty to Obtain Consent when decisions made under the Act have the potential to adversely affect Indigenous rights, particularly those related to cultural heritage, sacred sites, or archaeological resources.
Below are key situations where the Ontario Heritage Act triggers the Duty to Obtain Consent.
- Designation of Cultural Heritage Properties: When a municipality or the province designates a property as a cultural heritage site, and that property holds significance for an Indigenous community (e.g., burial sites, ceremonial sites), the decision may impact their rights or interests. This can trigger the Duty to Consult if the designation affects their ability to maintain a connection with the site.
- Archaeological Sites and Artifacts: Under the OHA, archaeological sites and artifacts are protected, and development projects that may disturb such sites require permits and assessments. If these sites are linked to Indigenous history or culture, the Crown (or its agents) must consult the affected Indigenous communities before issuing permits or allowing development to proceed.
- Alterations to Protected Heritage Sites: Proposed alterations to heritage properties or landscapes that are significant to Indigenous communities can trigger the Duty to Consult, as such changes may interfere with Indigenous cultural practices or historical connections to the land.
- Archaeological Assessments for Development: The OHA requires archaeological assessments as part of development approvals under the Planning Act. If an assessment identifies sites of Indigenous significance, consultation with the affected Indigenous nation is necessary to determine how to proceed without infringing on their rights.
Planning Act
The Planning Act of Ontario plays a key role in the Duty to Obtain Consent as it governs municipal land use planning, which can impact Haudenosaunee’s inherent and treaty rights. Throughout the Planning Act, mechanisms are in place which can enable the Duty to Consult and Accommodate when decisions—such as zoning by-laws, site plan approvals, subdivisions, or infrastructure projects—have the potential to adversely affect Haudenosaunee rights.
The Planning Act specifically strengthens Haudenosaunee authority over heritage and archaeological sites as there are several provisions requiring municipalities to consult with Indigenous nations on these matters.
Aggregate Resources Act
The Aggregate Resources Act (ARA) is a key piece of legislation in Ontario that governs the management and regulation of aggregate resources, such as sand, gravel, clay, and stone. The Duty to Consult is almost always triggered when a proponent applies for a new aggregate license, a permit for extraction, or an amendment to an existing license.
In most cases, proponents are required to conduct preliminary engagement with Indigenous communities ensuring that consent from HDI is obtained along with detailed reports to the Ministry of Natural Resources and Forestry about consultation discussions.
Environmental Assessment Act
The central purpose of the Environmental Assessment Act is to ensure that environmental and Haudenosaunee considerations are factored into decision-making for infrastructure projects.
Although Duty to Consult is not triggered directly by the Environmental Assessments Act there are numerous occasions in which the Duty to Consult can be triggered throughout the Environmental Assessment Process. This happens particularly when the proposed project has the potential to impact lands, resources, or activities that the Haudenosaunee rely on for traditional purposes.
The key activities that necessitate compliance with the Environmental Assessment Act and trigger the Duty to Consult include new project proposals, project amendments, permit applications, and government authorizations.
Requirements by Municipality
Municipal Class Environmental Assessments
The Municipal Class Environmental Assessment (MCEA) process is governed by the Ontario Environmental Assessment Act.
When development occurs within Haudenosaunee jurisdiction, HDI plays a critical role as a key rightsholder in municipal consultations. This means that municipalities undertaking a project must recognize the potential for inherent and treaty rights infringements resulting from the development. To address these concerns, consultation and accommodation are required to prevent or mitigate any adverse impacts.
The MCEA process frequently involves engagement, as it often mandates environmental, archaeological, or treaty-related consultations. It is important to understand that different types of development may require distinct MCEA processes or, in some instances, multiple assessments. If an MCEA triggers the need for engagement, please contact HDI immediately to initiate the appropriate engagement process.
Requirements by Professionalism
Archaeological Professionalism
All archaeological firms are legally required to register and comply with the standards established by ethical licensing boards to maintain their credentials. The most reputable boards, such as the Ontario Association of Professional Archaeologists’ (APA) Code of Professional Conduct, include explicit obligations to
- Respect the rights and interests of Indigenous communities
- Act with honesty, integrity, and accountability
- Promote meaningful collaboration and avoid perpetuating harm through bias or exclusion.
Non-compliance with these standards can lead to license suspension, revocation, or non-renewal under the Ontario Heritage Act.
HDI Green Plan
Any dealings involving land must be governed by the principles according to the HCCC rules.
Read More8 Points of Jurisdiction
Regulating development on behalf of the Haudenosaunee Chiefs Confederacy Council
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