Evaluation of Consultation and Accommodation

April 2015
Project Number: 1570-7 / 12038

PDF Version (283 Kb, 40 Pages)

 

Table of contents

Acronyms

ATRIS

Aboriginal and Treaty Rights Information System

CAU

Consultation and Accommodation Unit

EPMRB

Evaluation and Performance Measurement Review Branch

INAC

Indigenous and Northern Affairs Canada

The Guidelines

Aboriginal Consultations and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (2011)

 

 

Executive Summary

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Indigenous and Treaty rights of Indigenous peoples in Canada. The Supreme Court of Canada has held that the Crown has a legal duty to consult and, where appropriate, accommodate, when it contemplates conduct that may adversely impact potential or established Indigenous or treaty rights. The Supreme Court of Canada has identified that the legal duty to consult flows from the honour of the Crown and plays an important role in furthering the overall objective of reconciliation. Meeting the legal duty to consult requires a reasonable process that demonstrates a genuine effort to understand Indigenous concerns and, where appropriate, a genuine effort to address the Indigenous concerns related to potential adverse impacts on potential or established Section 35 rights.

The Indigenous and Northern Affairs Canada (INAC) Consultation and Accommodation Unit (CAU) was established in February 2008 to lead federal departments and agencies in the implementation of the Action Plan thereby promoting a "whole-of-government" approach to Indigenous consultation and accommodation.

The Evaluation, Performance Measurement and Review Branch of INAC conducted an Evaluation of Consultation and Accommodation. The overall purpose of the evaluation is to provide reliable evaluation evidence that will be used to support policy and program improvement and, where required, expenditure management, decision making, and public reporting related to the Strategic Outcome The Government. The Terms of Reference for the evaluation were approved at INAC's Evaluation, Performance Measurement and Review Committee in November 2012.

INAC Consultation and Accommodation rating is very high for risk and priority for auditing as there are significant legal ramifications and liabilities that result from a failure to properly consult Indigenous people and communities, or from an expectation that more extensive consultation was required. As no performance measurement strategy is in place for 1.2.3 of the Program Alignment Architecture – Consultation and Accommodation, the evaluation was limited due to the lack of clarity related to intended results and performance information.

The evaluation supports the following conclusions and recommendations:

Relevance

The relevance of the Consultation and Accommodation Unit is positively demonstrated by providing a whole-of-government approach to Indigenous consultation and accommodation and providing a central role in supporting federal efforts to meet legal obligations associated with the duty to consult.

Effectiveness

Findings from the evaluation conclude that the CAU has been successful in meeting its immediate outcomes by providing assistance to federal departments and agencies in fulfilling the Crown's legal duty to consult, engaging with Indigenous groups and representatives, with provinces and territories and with industry with regard to that duty, and contributing in the context of consultation protocols/arrangements. There is, however, ongoing work required by CAU if the early Action Plan principles of clarity on key consultation and accommodation issues, and consistency in consultation and accommodation practices across government are to be supported while updated intermediate expected results aligned with the current legal framework are designed.

Efficiency and Economy

Findings from the evaluation conclude that the CAU, which is a small group with a budget of approximately $4 million in 2013-14, has positively demonstrated efficiency and economy though a number of areas, including utilizing a single window approach, technology, integration of processes and protocol arrangements.

Recommendations

It is recommended that INAC:

  1. Continue to strengthen relationships with provinces and territories regarding consultation and accommodation in order to better align approaches
  2. Continue to provide support and guidance to stakeholders in managing the complexity of consultation and accommodation, including supporting regional and/or specific guidance.
  3. Develop a Performance Measurement Strategy for 1.2.3 Consultation and Accommodation and revise the intermediate outcomes to align with the current legal framework.
 

 

Management Response / Action Plan

Project Title: Evaluation of Consultation and Accommodation Project #: 12038

Recommendations Actions Responsible Manager (Title / Sector) Planned Implementation and Completion Date

1. Continue to strengthen relationships with provinces and territories regarding consultation and accommodation in order to better align approaches.

  1. Continue to negotiate and implement Memoranda of Understanding and related work plans with interested Provinces and Territories.
  2. Continue to support the Deputy Minister mandated Federal/ Provincial/ Territorial Working Group.
  3. Continue to maintain key linkages with provinces and territories via the Regional Consultation Coordinators.
Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government Sector

Implementation Date:

April 2015

Status: Underway

Update/Rationale:
As of 31/03/2016:

  1. Undertook implementation of work plan to support Memorandum of Understanding (MOU) with Nova Scotia, MOUs with British Columbia, Alberta, Manitoba and New Brunswick are awaiting signature.
  2. Several teleconference calls were held with the Federal/Provincial/Territorial Working Group on Aboriginal Consultation and Accommodation on various consultation-related issues. Planning for the 2016 in-person workshop in Charlottetown (June 2016) is underway.
  3. Regular bilateral discussions with provinces and territories; increasing participation of provinces in federal network meetings.

AES: Recommend to close. Structures and processes are working as intended to address the recommendation. Closed.

2. Continue to provide support and guidance to stakeholders in managing the complexity of consultation and accommodation, including supporting regional and/or issue specific guidance.

  1. Continue training of federal officials on the duty to consult, linking to work with the Canada School of Public Service to enhance public service knowledge of legal obligations.
  2. Continue providing advice and coordination through interdepartmental working groups, the Consultation Information Service and participation on the Major Projects Management Office Deputy Minister Committee.
Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government Sector

Implementation Date:

April 2015

Status: Underway

Update/Rationale:
As of 31/03/2016:

  1. Tailored and interdepartmental training sessions provided to 98 officials in Q4 in Gatineau, Nanaimo, Regina, Sarnia and Toronto. The draft outline of an Aboriginal Training module has been shared with the Canada School of Public Service (CSPS) for discussion. Continued to support CSPS in development of Aboriginal Awareness Training.
  2. Continued to provide advice through the Interdepartmental Team for Aboriginal Consultation through regular monthly meetings. The Consultation Information Service (CIS) continued to offer monthly training webinars to external stakeholders and added new content to the recently added tab "Consultation Related Information". With regards to the Treaty Obligation Monitoring System (TOMS), the CIS reviewed the survey results that other federal departments completed, and define new high level requirements for TOMS V2 solution. CIS is working with over 40 departments and agencies to validate the data from TOMS V1 before it is migrated in TOMS V2.
  3. Continued to provide advice to and participates in the Major Projects Management Office Deputy Ministers Committee, for example provided support to for an upcoming meeting on Indigenous issues, including consultation, accommodation approaches for the TMX project and a TMX-specific consultation protocol with Tsleil-Waututh.

AES: Recommend to close. Structures and processes are working as intended to address the recommendation. Closed.

3. Develop a Performance Measurement Strategy for 1.2.3 Consultation and Accommodation and revise the intermediate outcomes to align with the current legal framework.

a) Work with the appropriate sectors to develop a Performance Measurement Strategy for 1.2.3 Consultation and Accommodation and revise the intermediate outcomes to align with the current legal framework.  Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government Sector

Implementation Date:

April 2015

Status: Request to Close (Completed)

Update/Rationale:
As of 31/12/2015:

Treaties and Aboriginal Government Sector has been working with the appropriate sectors to develop the Performance Measurement Strategy. Key processes (e.g. development of a logic model) have been completed to support the draft which will be shared for final review and comments. The Performance Measurement Strategy will be submitted for review and approval during the June 23, 2016, meeting of the Evaluation and Performance Measurement Review Committee.

AES: Recommend to close.  Draft Strategy to be presented at June 2016 EPMRC Committee. Closed

 

I recommend this Management Response and Action Plan for approval by the Evaluation, Performance Measurement and Review Committee

Original signed on April 17, 2015, by:

Michel Burrowes
Director, Evaluation, Performance Measurement and Review Branch

I approve the above Management Response / Action Plan

Original signed on April 22, 2015, by:

Joe Wild
Senior Assistant Deputy Minister, Treaties and Aboriginal Government

 

 

1. Introduction

1.1 Overview

As per Treasury Board requirement to evaluate program spending every five years, the Evaluation, Performance Measurement and Review Branch (EPMRB) at Indigenous and Northern Affairs Canada (INAC) conducted an Evaluation of Consultation and Accommodation.

The overall purpose of the evaluation is to provide reliable evaluation evidence that will be used to support policy and program improvement and, where required, expenditure management, decision making, and public reporting related to the Strategic Outcome - The Government.

The evaluation will provide evidence-based conclusions and recommendations regarding relevance and performance (effectiveness, efficiency and economy) as per the Treasury Board's Policy on Evaluation.

1.2 Program Profile

1.2.1 Background and Description

Legal Duty to Consult

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Indigenous and Treaty rights of Indigenous peoples in Canada. The Supreme Court of Canada has held that the Crown has a legal duty to consult and, where appropriate, accommodate, when it contemplates conduct that may adversely impact potential or established Indigenous or treaty rights. The Supreme Court of Canada has identified that the legal duty to consult flows from the honour of the Crown and plays an important role in furthering the overall objective of reconciliation. Meeting the legal duty to consult requires a reasonable process that demonstrates a genuine effort to understand Indigenous concerns and, where appropriate, a genuine effort to address the Indigenous concerns related to potential adverse impacts on potential or established Section 35 rights.

The legal duty to consult applies when the Crown (federal or provincial/territorial) is planning or carrying out conduct. Some examples include:

  • Land transactions such as the disposal or lease of Crown lands;
  • Regulatory processes, approvals and permitting by the Crown of third-party projects; and
  • Proposed settlement with Indigenous groups where there are overlapping claims of other Indigenous groups (e.g. treaties and additions to reserve).

The duty to consult has been a game changer for many Indigenous groups, particularly for groups geographically well situated in relation to both ongoing and potential resource development projects, by providing them with new opportunities to obtain immediate and tangible economic and other benefits based on asserted, but as yet unproven rights.

The duty to consult has also profoundly heightened provincial and territorial governments' interest in and attention to Section 35 issues, primarily because they are generally the largest owner of lands and resources in a province or territory and have a corresponding large interest in the development and use of those lands and resources.

INAC Consultation and Accommodation Unit

In November 2007, the Government of Canada launched a plan to address the legal duty of federal departments and agencies to consult with Indigenous groups. The Action Plan was designed to ensure that:

  • federal officials received consultation guidelines and related training;
  • federal officials began monitoring and improving the co-ordination of consultation and accommodation practices across departments;
  • a repository of information was created to track the location and nature of potential and established Indigenous and treaty rights; and
  • Indigenous groups, provinces, territories and industry groups were engaged in the development of policy on consultation and accommodation.

INAC Consultation and Accommodation Unit (CAU) was established in February 2008 to lead a "whole-of-government" approach to Indigenous consultation and accommodation. The CAU helps federal, provincial and territorial departments and agencies fulfill their duty to consult through the following measures and responsibilities.

Assisting Departments and Agencies in Fulfilling the Duty to Consult

  • Providing Government of Canada officials with training and advice on the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult.
  • Examining and advising on key policy issues related to the Crown's legal duty to consult, (e.g., Accommodation, Strength of Claim).
  • Providing additional training beyond the basic sessions, supporting departments and agencies in developing their own training, and designing information sessions for industry and Indigenous groups.

Consultation Arrangements/Protocols

  • Negotiating cooperative arrangements with provinces and territories and Indigenous groups to make consultation processes more efficient and coordinated.
  • Enhancing Canada's working relationship with provinces and territories through the development of memorandums of understanding.

Consultation and Accommodation Tools

  • The Aboriginal and Treaty Rights Information System (ATRIS) is a web-based information system intended to map out the location of Indigenous communities and display information pertaining to their potential or established Indigenous or Treaty rights.
  • The Consultation Information Service is a single window for providing information to federal officials and other interested parties on the location and nature of established and potential Indigenous and treaty rights.
  • Contributes to the development of operational guidance and tools in relation to consultation and accommodation (e.g., forms, assessment tools, tracking tables).

The Consultation and Accommodation Unit is comprised of a director and approximately 25 staff members.

1.2.2 Link to INAC's Program Alignment Architecture

As part of 1.2.3 Consultation and Accommodation program activity in the 2015-2016 Program Alignment Architecture, the CAU contributes to INAC's Government Strategic Outcome of Supporting good governance, rights and interests of Aboriginal Peoples. This sub-program provides support to internal and external stakeholders to maintain collaboration with Indigenous groups and their representatives with the expected result of Assistance provided in fulfilling the Crown's legal duty to consult, and where appropriate, accommodate when Crown conduct may adversely affect Aboriginal or Treaty Rights.

1.2.3 Expected OutcomesFootnote 1

Immediate (2015-2016 Performance Management Framework)

  • Assistance to federal departments/agencies in fulfilling the Crown's duty to consult.
  • Engagement with Indigenous groups and representatives, with provinces and territories and with industry with regard to that duty.
  • Contributions in the context of consultation protocols/arrangements.

Intermediate (2008 Results-based Management and Accountability Framework)

  • Clarity on the perspectives of Canada, First Nations, Métis and Inuit groups, provinces, territories and industry on key consultation and accommodation issues.
  • Consistency in consultation practices across government and better management of related legal and business risks.

1.2.4 Program Management, Key Stakeholders and Beneficiaries

Program Management: The CAU is situated in the Treaties and Aboriginal Government Sector. It is organized internally along four business lines:

  • The Consultation Information Service develops and manages the ATRIS system and provides information on rights assertions to stakeholders.
  • The partnerships team, which includes the regional consultation coordinators located in INAC regional offices and coordinated by the Partnerships Manager in the CAU, builds relationships and/or arrangements with regional federal officials, provinces and territories, Indigenous groups and industry.
  • The policy group co-ordinates the Interdepartmental Team and Intradepartmental Group and provides guidance to federal officials on policy questions.
  • The training team develops operational guidance, tools and training material and delivers training to federal officials across regions and departments/agencies.
Key Stakeholders

The CAU has several partners and stakeholders. An Interdepartmental Team is in place composed of representatives from INAC and the following departments:

  • Canadian Northern Economic Development Agency
  • Canadian Environmental Assessment Agency
  • Canadian Nuclear Safety Commission
  • Fisheries and Oceans Canada
  • Justice Canada
  • National Defence and the Canadian Forces
  • Environment Canada
  • Natural Resources Canada and their Major Projects Management Office
  • Parks Canada
  • Public Works and Government Services Canada
  • Transport Canada
  • Treasury Board of Canada Secretariat
  • National Energy Board

Other stakeholders include:

  • Other departments on the Auxiliary Interdepartmental TeamsFootnote 2
  • Provinces/territories
  • Indian Bands/Inuit settlements
  • Tribal councils
  • Indigenous Associations
  • Métis organizations/Collectives
  • Industry
  • Regional federal consultation practitioners

Within INAC, the CAU provides advice and support to sectors; however, sectors are responsible for developing processes for fulfilling the Crown's legal duty to consult obligations, which fall under INAC mandate. Sectors have, in turn, developed specific guidelines, tools, and operational procedures with respect to fulfilling this legal duty. The CAU continues to provide support to INAC sectors to ensure that they are aware of their obligations for the legal duty to consult; helps address issues/concerns and any specific need/requirement on other department policy or program issues; and, provides positions and feedback on policy and litigation issues.

Program Resources

Table 1: Program Resources INAC Federal Initiative on Consultation - 2008-2009 to 2013-2014Footnote 3

Vote 2008-09
(actuals)
2009-10
(actuals)
2010-11
(actuals)
2011-12
(actuals)
2012-13
(actuals)
2013-14
(actuals)
2014-15
(budget)
V01 - Operating Expenditures $1,315,524 $1,764,226 $2,197,792 $3,435,408 $3,435,407 $3,550,466 3,550,466
V10 – Grants and Contributions - $840,898 - - $375,000 $387,500 $387,500
Total $1,315,524 $2,605,124 $2,197,792 $3,435,408 $3,810,407 $3,937,966 $3,937,966
 

The financial authority associated with Consultation and Accommodation is Contributions for the purpose of consultation and policy development.

1.2.5 Risk

INAC Consultation and Accommodation rating is very high for risk and priority for auditing as there are significant legal ramifications and liabilities that result from a failure to properly consult Indigenous people and communities, or from an expectation that more extensive consultation was required. There are increasing demands on the part of First Nations for engagement and recent court cases have ruled against INAC on the grounds that sufficient consultation on program changes have not taken place. INAC Consultation and Accommodation maps to the Corporate Risk Profile in the following area: Human Resource Capacity, Information for Decision Making, Implementation, Resource Alignment, Government Partnership, Indigenous Relationship, and Legal.Footnote 4

 

 

2. Evaluation Methodology

2.1 Evaluation Scope and Timing

The evaluation examined the evaluation issues of relevance and performance (effectiveness, efficiency and economy) of the INAC Consultation and Accommodation Unit during the period from 2008-2009 through 2014-2015. The Terms of Reference for the evaluation were approved by INAC's Evaluation, Performance Measurement and Review Committee on November 23, 2012. Karen Ginsberg Management Consulting, Inc. was contracted to undertake the case studies.

2.2 Evaluation Issues and Questions

In line with the Treasury Board Secretariat Directive on the Evaluation Function, the evaluation focused on the following issues.

Continued Need: Assessment of the extent to which the program continues to address a demonstrable need and is responsive to the needs of Canadians.

Alignment with Government Priorities: Assessment of the linkages between program objectives and federal government priorities and departmental strategic outcomes.

Alignment with Federal Roles and Responsibilities: Assessment of the role and responsibilities for the federal government in delivering the program.

Performance - Effectiveness

Achievement of Expected Outcomes: Assessment of progress toward expected outcomes.

Performance – Efficiency and Economy

Demonstration of Efficiency and Economy:Assessment of resource utilization in relation to the production of outputs and progress toward expected outcomes.

2.3 Methodology

The results of the evaluation are supported by findings collected through the following lines of evidence.

2.3.1 Literature Review

The evaluation team reviewed a range of academic articles, research reports and grey literature that explored the broader trends, issues, challenges and best practices related to the legal duty to consult.

2.3.2 Document and File Review

The evaluation team conducted an analysis of the data, documentation and communications of both the CAU and the Government of Canada.

2.3.3 Key Informant Interviews

A total of 45 interviews were conducted.

  • Representatives from INAC
    • Treaties and Indigenous Government Sector (n=12)
    • Regional offices (n=6)
  • External Representatives
    • Other federal government departments/agencies (n=16 – including 12 who took part in the case studies)
    • Aboriginal organizations (n=7)
    • Provincial/territorial governments (n=3)
    • Industry (n=1)

2.3.4 Case Studies

A total of five case studies were completed for this evaluation: three at departmental level and two at the project level. The departmental level studies were to provide the evaluation with an overall understanding of the approach used at departments/agencies with significant activity around the legal duty to consult. The two project level studies, drawn from the department level studies, were designed to provide greater detail on examples of actual implementations of the legal duty to consult. Each case study included its own document review and key informant interviews.

Departmental level

  • Transport Canada
  • Parks Canada Agency
  • Canadian Environmental Assessment Agency

Project Level

  • Pacific Rim Park Reserve Management Plan (Parks Canada Agency)
  • Prosperity Gold-Copper Mine Project (Canadian Environmental Assessment Agency)

2.4 Roles, Responsibilities and Quality Assurance

The evaluation was directed and managed by EPMRB in line with the EPMRB 's Engagement Policy and Quality Control Process. Quality assurances have been provided through the activities of an advisory group comprising representatives from EPMRB and Treaties and Aboriginal Government Sector.

2.5 Considerations/Limitations

2.5.1 Considerations

  • Fulfilling the legal duty to consult is the responsibility of the Crown and, therefore, impacts many federal departments. However, this evaluation was conducted primarily as an assessment of the supporting role of INAC's CAU rather than a horizontal evaluation.
  • To address gender-based analysis requirements, key informants were given the opportunity to describe any implications or situations arising from the legal duty to consult and/or the Government of Canada's approach to Indigenous consultation and accommodation. Little information and no discernible pattern emerged from these discussions, which complement the CAU position that the implementation of the Action Plan and the legal duty itself has an equal impact on established and potential Indigenous and Treaty rights for women. However, due in part to the importance of Indigenous women in influencing public policy and decision making, the Native Women's Association of Canada, Pauktuutit, and the Nova Scotia Native Women's Association participated in the 2009-2010 engagement process under the Action Plan.

2.5.2 Limitations

  • As no performance measurement strategy is in place for 1.2.3 of the Program Alignment Architecture – Consultation and Accommodation, there was a lack of clarity related to intended results and performance information.
  • There has not been a complete risk assessment completed for Consultation and Accommodation outlining, for example, the legal and business risks.
  • Lower than anticipated participation in interviews by industry representatives; the evaluation includes one key informant interview with an industry representative. As a result, observations about the industry perspective are derived primarily from the document and literature review conducted for this evaluation.
 

 

3. Evaluation Findings – Relevance

The evaluation issue of relevance assessed the continued need, alignment of government priorities, and alignment with federal roles and responsibilities of the CAU in the context of the legal duty to consult. Findings from the evaluation conclude that the evaluation issue of relevance was positively demonstrated as the duty to consult is a legal duty in which the federal government has a responsibility to ensure that the duty has been properly discharged in any particular case. It is also aligned with government priorities and roles and responsibilities as the development of the natural resources sector and the need for reconciliation between the Crown and Indigenous people are government priorities.

The relevance of the Consultation and Accommodation Unit is positively demonstrated by supporting a whole-of-government approach to Indigenous consultation and accommodation and providing a central role in supporting federal efforts to meet legal obligations associated with the duty to consult.

3.1 Continuing Need

The Supreme Court of Canada has identified that where the Crown (federal or provincial/territorial) is contemplating conduct that might adversely impact upon asserted or established Section 35 rights, the Crown has an obligation to consult, and in certain circumstances, accommodate Indigenous groups whose rights could be affected even prior to those rights being confirmed through court decisions or agreement. The duty to consult is grounded in the honour of the Crown, and is part of the reconciliation process mandated by Section 35.

While there are earlier references by the courts to the duty to consult in the Indigenous law context, it was the Supreme Court of Canada decisions in the Haida, TakuFootnote 5, Mikisew Cree, Rio Tinto and Little Salmon/Carmacks line of cases that articulated the key elements of a framework and process for the duty to consult and, where appropriate, accommodate Indigenous and treaty rights.

3.2 Alignment with Federal Government Priorities

3.2.1 Reconciliation

Reconciliation is highlighted as a priority of INAC and as such, the Department will continue to promote reconciliation between the Government of Canada and Indigenous people as well as between Indigenous people and other Canadians.Footnote 6

The duty to consult is a legal duty grounded in S. 35 of the Constitution Act, 1992 and developed by the Supreme Court of Canada to give meaning to S.35's promise of "recognition and affirmation" and to assist in achieving reconciliation of Indigenous rights and interests with other broader societal interests that the Crown is responsible for managing.

"…the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35 of the Constitution Act, 1982."Footnote 7

As part of the larger framework of reconciliation, the Crown must act honourably in discharging its duty to consult.

"In all its dealings with Aboriginal people, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably."Footnote 8

The Supreme Court of Canada also described the process of reconciling rights as a core objective of Section 35.

"I conclude that consultation and accommodation before final claims resolution, while challenging is not impossible, and indeed is an essential corollary to the honourable process of reconciliation that s. 35 demands…"Footnote 9

From Canada's perspective, the duty to consult helps to ensure that government business and operations can be carried out effectively and honourably, having regard to the overall Crown-Indigenous relationship; the need for reconciliation between the Crown and Indigenous people and between Indigenous and other Canadians; and the need to uphold the honour of the Crown.

3.2.2 Resource Development

The Government of Canada announced its plan for Responsible Resource Development as part of its Economic Action Plan in 2012. This plan includes a dedication to enhancing Indigenous engagement and consultation as part of its commitment to respecting Indigenous peoples' rights with respect to the development of natural resources. The Government of Canada has further stated that it will ensure the federal Crown fulfils its duty to consult Indigenous groups, while at the same time leveraging the ability of the resource sector to support important economic development opportunities for Indigenous peoples.

The plan for Responsible Resource Development includes integrating consultation into the project review process to ensure early consideration of potential impacts to Indigenous or treaty rights before decisions are made, designating a lead department or agency to co-ordinate consultations for each project review, providing additional funding of $13.6 million over two years to support Indigenous consultations on projects and, lastly, developing consultation memorandums of understanding and protocols with provinces and Indigenous groups to align processes and clarify expectations.

Natural resource development is viewed as a critical component of Canada's economic prosperity with the industry supporting 1.8 million direct and indirect jobs and governments receiving approximately $30 billion in revenues per annum from natural resource sectors between 2008 and 2012.Footnote 10 Moreover, natural resource projects have the potential to enhance existing and create important new opportunities and prosperity for many Indigenous communities.

The risk to government in failing to fulfill its duty to consult is possible delay of government or industry conduct or activity. This risk can be significant, particularly for geographically well situated Indigenous groups in relation to potential resource development projects.

3.3 Alignment with Federal Roles and Responsibilities

The duty to consult and, where appropriate, accommodate, is a legal duty that rests on the Crown "writ large" in its federal and/or provincial/territorial manifestation. Accordingly, it is the federal or provincial/territorial government, as a whole, which has the legal responsibility to ensure that the duty has been properly discharged in any particular case. In the federal context, this can pose certain challenges. The duty that arises from proposed federal conduct or decisions may involve one or more departments, agencies or other Crown "actors" in discharging the duty. In many cases, the duty may extend beyond the mandate or legislative authority of an individual federal entity.

Discharging the Crown's duty requires not only meaningful engagement, but also the ability (authority) to respond to concerns raised by implementing accommodation measures, including avoiding or minimizing adverse effects. The authority of boards and tribunals in relation to discharging the Crown's duty will depend on their statutory powers in each case.Footnote 11

The legal duty to consult and accommodate, cannot be delegated. However, Crown decision makers charged with making decisions that trigger the duty to consult can rely upon information gathered by others and accommodation measures put in place by others, including a proponent of a project, to fulfill the duty. Those decision makers must then assess whether the Crown's duty to consult has been discharged, that the process was fair and reasonable and the Crown had the necessary information before it when making any decision or taking any action that may adversely impact on Section 35 rights.

In Little Salmon/Carmacks, Binnie J. noted that consultation can be shaped by agreement of the parties in a modern treaty or self-government agreement, but the Crown is not capable of contracting out of its duty of honourable dealing with Indigenous people.Footnote 12 In other words, the terms of a treaty are capable of fulfilling the Crown's obligations in relation to the duty to consult in any particular circumstance, provided that the treaty, and the way it is implemented, is viewed as satisfying the honour of the Crown in those circumstances. This signals both a willingness by the courts to defer to arrangements reached by the parties in modern treaties, while preserving a degree of judicial supervision. Accordingly, the duty is an ongoing obligation on all government departments and agencies that does not end with the conclusion of modern treaties and self-government arrangements with an Indigenous group.

The courts have also identified that while treaty negotiations are an important step in the Crown/Indigenous reconciliation process, the Crown is not relieved of its duty to consult in relation to overlapping claims of another Indigenous group that may be impacted by the conclusion of the modern treaty arrangement.Footnote 13 Accordingly, the duty must be integrated into the process of negotiating treaties, and the Crown (federal, provincial and territorial) must take contested or established Indigenous or treaty rights into account before making decisions that may have an adverse impact on them.Footnote 14 The timing and context of the Crown's conduct in carrying out its duty will depend on the context, but early consultation is preferred. In Sambaa K'e, entering into an agreement-in-principle was regarded as a strategic decision, which, although not binding or conferring rights, set up the means and momentum towards a particular course of action or outcome such that it triggered a duty to consult.Footnote 15 The confidentiality of treaty negotiations also cannot be relied upon by the parties to the negotiations as a reason not to engage in meaningful consultation.Footnote 16

3.4 Relevance of the Consultation and Accommodation Unit

Before the Action Plan was announced in late 2007, no one department or agency had been responsible for coordinating a federal approach to fulfilling the legal duty to consult, resulting in the potential for a lack of coherence, consistency and co-ordination, which, in turn, could have put the federal government at greater legal risk and would not have promoted good relationships and reconciliation. The INAC CAU, established in early 2008, led the Department's efforts in implementation of the Action Plan. As INAC is the federal department with the most extensive and direct relationship with Indigenous peoples, it is well positioned to play a central role in supporting federal efforts to meet legal obligations associated with the duty to consult. It is important to note that despite the essential contributions of the CAU, the CAU plays a supporting role for federal departments and agencies as each department is responsible for fulfilling their own respective legal duties related to Indigenous consultation and accommodation.

The relevance of the Consultation and Accommodation Unit is therefore positively demonstrated by supporting a whole-of-government approach to Indigenous consultation and accommodation and providing a central role in supporting federal efforts to meet legal obligations associated with the legal duty to consult.

 

 

4. Evaluation Findings - Effectiveness

The evaluation issue of effectiveness assessed the progress toward expected immediate and intermediate outcomes of the CAU. Findings from the evaluation conclude that the CAU has been successful in meeting its immediate outcomes by providing assistance to federal departments and agencies in fulfilling the Crown's legal duty to consult, engaging with Indigenous groups and representatives, with provinces and territories and with industry with regard to that duty, and contributing in the context of consultation protocols/arrangements. There is, however, ongoing work required by CAU if the early Action Plan principles of clarity on key consultation and accommodation issues, and consistency in consultation and accommodation practices across government are to be supported while updated intermediate expected results aligned with the current legal framework are designed.

4.1 Immediate Outcomes

Three immediate outcomes were identified for the CAU as per the 2015-2016 Performance Management Framework:

  • Assistance to federal departments and agencies in fulfilling the Crown's legal duty to consult;
  • Engagement with Indigenous groups and representatives, with provinces and territories and with industry with regard to that duty; and
  • Contributions in the context of consultation protocols/arrangements.

4.1.1 Assistance to federal departments and agencies in fulfilling the Crown's legal duty to consult

The CAU fulfilled the requirements to implement the Government of Canada's Action Plan on Aboriginal Consultation and Accommodation (2007), which set out the first steps in establishing a more consistent approach to consultation with Indigenous groups. Some of the accomplishments of the Action Plan were the release of the Interim Guidelines (2008), the training provided to federal officials across the country, the engagement with Indigenous communities and organizations, provinces and territories and industry representatives and the development of tools to support federal officials in their consultation and accommodation activities. Since meeting the objectives set out in the Action Plan, the CAU has continued to provide assistance to federal departments and agencies through the following areas.

Guidelines

Aboriginal Consultations and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (2011) ("the Guidelines"). The CAU updated the Interim Guidelines (2008), in collaboration with other federal departments and agencies, to reflect developments in case law and the experiences engaging with Indigenous organizations and communities, provinces and territories and industry representatives. The Guidelines were developed to provide practical advice and guidance to federal departments and agencies to help officials determine when the duty to consult may arise and how it may be fulfilled. To support consistency across government, the Guidelines set out guiding principles, clarify roles and responsibilities, and provide a step-by-step chronological guide to consultation and accommodation. The Guidelines are in the process of being updated to reflect changing case law and feedback from users based on experience with the 2011 edition.

Co-ordination

Co-ordination at the federal level is important for effective information sharing, reducing duplication, reducing Indigenous consultation fatigue, and supporting a consistent approach by the Crown. The CAU co-ordinates a number of activities related to the legal duty to consult, including for example, collaborating with the Major Projects Management Office at Natural Resources Canada and the Northern Projects Management Office at Canadian Northern Economic Development Agency to facilitate effective, accountable, transparent, timely and predictable federal review of resource development and infrastructure projects.

Another example of the CAU's coordinating activity is its support for the Government of Canada's Consultation and Accommodation Interdepartmental Team. The purpose of the Interdepartmental Team is to provide guidance and direction to federal departments and agencies in supporting the whole-of-government approach to Indigenous consultation and accommodation. The Interdepartmental Team, which has representatives from 14 federal government departments and agencies,Footnote 17 serves as a forum to address issues arising from Canada's approach to consultation and accommodation. It is also a forum for information sharing and supports the development of department/agency policies, tools and guidelines. The Interdepartmental Team is chaired by the CAU with oversight from the Major Projects Deputy Minister CommitteeFootnote 18.

The CAU also co-ordinates the regional consultation coordinators, which play an essential role in building relationships and responding to the concerns of stakeholders, acting as liaison between federal departments, provincial and territorial governments and Indigenous organizations and communities. Regional consultation coordinators also participate in INAC policy development, operational guidance and training for consultation and accommodation. Regional consultation coordinators share issues and challenges in their respective regions and, based on what they hear from stakeholders and provide policy advice by advising on what may or may not work on the ground and ensuring regional-specific issues are considered. In addition, the regional consultation coordinators explore opportunities for joint development of memorandums of understanding and consultation protocols with Indigenous groups and provinces/territories, provide broad consultation advice and find opportunities to encourage collaboration between the federal government and provincial/territorial governments, Indigenous groups and industry.

Several informants noted that CAU support for Indigenous consultation is well-integrated in the regions because the regional consultation coordinators have effectively developed and supported good relationships.

Training and Tools

The Aboriginal and Treaty Rights Information System (ATRIS) is a web-based information system intended to map out the location of Indigenous communities and display information pertaining to their potential or established Indigenous or treaty rights. It is used to help interested parties determine which Indigenous groups they may need to consult about their proposed activities across Canada. Although the first iteration of the ATRIS system was criticised for not fully meeting the needs of client departments, ATRIS has evolved over time based on feedback from users and the CAU's active collection of information from within the Department around consultation and accommodation. Such activities revealed information gaps to be addressed, which emerged as departments began to operationalize their new policies. As further information on Indigenous and treaty rights in Canada became available through consultations with Indigenous communities, court decisions or other means, ATRIS has been updated. INAC has made the system available publicly and actively seeks input from users to improve the system and offers web-training. Despite improvements to date, several key informants stated that ATRIS could be better by providing more information on a timelier basis. For example, the information regarding the Nisga'a Nation is not accurately represented on ATRIS.

The Consultation Information Service of the CAU manages the ATRIS and also serves as a single point of access for departments and agencies to information on Indigenous and treaty rights not housed within ATRIS. The regional consultation coordinators feed into this service by providing up-to-date information to inform the responses the Consultation Information Service prepares for the questions and inquiries it receives. 

Training has been provided to over 2,700Footnote 19 federal officials, mainly from regulatory departments and agencies across Canada, which has contributed to an increase in awareness and a greater understanding of Canada's consultation and accommodation obligations. The trainingteam developed operational guidance and training material and delivers training to federal officials across regions and departments/agencies – usually tailoring the information to the audience. A one-day introductory session was first developed and, additionally, a two-day enhanced session has been offered since 2012. Topics addressed in training sessions include consultation requirements and associated processes, Indigenous and treaty rights, the latest case law as it relates to the duty to consult and an introduction to the ATRIS and Consultation Information Service. To date, there has been no formal analysis of the feedback forms, however, they are assessed following the session to support ongoing development of training. There were many very positive comments about the quality of the training from key informants.

Information Sharing and Policy Advice

Information about the legal duty to consult is shared in a variety of ways, including, for example, through the regional consultation coordinators, the Inter- and Intradepartmental teams, and the Federal/Provincial/Territorial Working Group on Aboriginal Consultation and Accommodation. Representatives from these groups were positive about the role CAU provides for creating a constructive forum for information sharing and contributing to the dissemination of information. Information about the legal duty to consult is also shared through ATRIS and other online tools such as Hummingbird Collaboration and GCPedia.

The CAU appears to have evolved from its initial proactive approaches to raise awareness of the legal duty to consult and provide guidance for federal officials to a more 'centre of excellence' profile that is sought out for advice and counsel on project-specific issues. The CAU seems to have established itself as a source of good policy guidance, information and operational advice. Feedback on the quality of the CAU staff, while not solicited, was freely offered and very positive.

Key informants noted that the CAU should continue to raise its profile and play a leadership role in assisting federal departments and agencies in fulfilling the Crown's legal duty to consult. This continues to be necessary as it was reported that more could be done to inform federal officials of the tools and support provided by the CAU.

Support to the "Whole-of-Government" approach

The CAU is mandated to support the 'whole of government' approach for major resource projects primarily through ensuring that Crown consultation is integrated into the environmental assessments and project review process. The relevant regulatory authority is responsible for co-ordinating those consultations. Informants stated that the CAU is well-positioned to support the achievement of the level of consistency and co-ordination conceived for a "whole-of-government" approach. The Consultation Information Service has demonstrated its ability to influence government departments and agencies by ensuring that all federal officials receive the same baseline information, in support of the long-term goal of consistency.

The CAU further supports a 'whole-of-government' approach through the partnerships it has established with:

  • The Canadian Environmental Assessment Agency is a federal body mandated to provide advice and guidance across government to assist federal authorities in carrying out environmental assessments. The Canadian Environmental Assessment Agency leads the co-ordination between federal/provincial/territorial environmental assessment requirements and administers a participant funding program to facilitate public participation and Indigenous consultation during comprehensive studies and assessments by review panels. The Canadian Environmental Assessment Agency acts as the Crown Consultation Coordinator to integrate the Government of Canada's Indigenous consultation activities into the environmental assessment process to the greatest extent possible. This applies to all environmental assessment for which the Canadian Environmental Assessment Agency is the responsible authority.
  • Major Projects Management Office was established in 2007 to improve the efficiency and effectiveness of the federal regulatory review system while ensuring careful consideration of environmental protection, Indigenous consultation obligations, and enhancing the competitiveness of Canada's resource industries. It provides a single point of entry into Canada's regulatory process for major resource projects.
  • The Northern Projects Management Office was established to improve the environmental review process for proposed major resource development and infrastructure projects in northern Canada. It co-ordinates federal efforts related to northern regulatory review processes; provides advice and issues management among federal and territorial governments, industry, regulatory and review boards, Indigenous groups and communities; and oversees federal Crown consultations with Indigenous communities related to the environmental process.

The CAU assists federal departments and agencies in fulfilling the Crown's duty to consult by raising awareness regarding the duty to consult, offering various supports and training federal officials on how to consult properly. Ensuring that consultations are effective and consistent is necessary to avoid future questions as to the quality or meaningfulness of the process, thus risking a challenge of the adequacy of the consultation process altogether. INAC is viewed by other government departments as the Department with extensive knowledge of Indigenous communities and is likely best placed to share this expertise with other interested parties. The difficulties of managing a whole-of-government approach through INAC are also widely acknowledged among key informant interviewees.

4.1.2 Engagement with Indigenous groups and representatives, with province and territories and with industry with regard to the legal duty to consult

Indigenous Groups and Representatives

The CAU began engaging with Indigenous communities and organizations, provinces, territories and industry as part of its initial "Action Plan" mandate. A key element in the 2007 Action Plan was to engage with First Nations, Inuit and Métis communities and organizations, provinces and territories and industry to seek their views on a federal policy approach to Indigenous consultation and accommodation. According to INAC's Summary of Input from Aboriginal Communities and Organizations on Consultation and Accommodation, 68 First Nations, Inuit and Métis accepted the Department's invitation to participate in the engagement process, which took place between January 2009 and March 2010. Among the participants were organizations, such as the Assembly of First Nations, National Women Association of Canada, National Aboriginal Friendship Centre, Pauktutiit and a range of Indigenous communities from all provinces and territories. The CAU continues to engage, support and collaborate with each of those groups, often proactively but, more recently, in response to requests for more detailed information.

Over the years, the CAU has met with Indigenous organizations after reaching out to some and in response to other Indigenous organizations who have specifically asked for more information about the duty to consult. One example is the meeting with the Heiltsuk Tribal Council that included a question and answer session to elaborate on the Government's approach. The CAU has also presented to the Assembly of Manitoba Chiefs to highlight the CAU's activities, priorities, challenges and future plans. The regional consultation coordinators meet with Indigenous communities and organizations on a regular basis, given their role in negotiating protocols and formalizing relationships.

Provinces and Territories

Provincial and territorial governments have a significant role to play regarding resources development, Indigenous relationships and the legal duty to consult.Footnote 20 Key informants noted that there are inconsistencies and sometimes conflicting interpretations across federal, provincial and territorial approaches. It was suggested by informants that provincial governments need to increase their role within their areas of jurisdiction, (for example, greater provincial involvement in land use planning and preparations for consultations). There appears to be a need to address some of the inconsistencies, perhaps starting with clearly defining the exact roles of the federal and provincial governments and more clarity about the specific responsibilities of each order of government. The CAU does engage with provinces – a number of whom have established dedicated offices for Indigenous consultations – and experience varies by province. British Columbia has had well established consultation practices in place for 20 years, which they were able to share with INAC when the CAU was established. Other provinces have relied on the CAU to assist in the development of their consultation offices – and those participating in the interview process were very appreciative of the expertise offered by the CAU.

The CAU engages with provinces and territories through information sharing and policy work as much of the same issues are tracked by both levels of government. CAU's engagement with provinces and territories varies as the level of information needs varies. The engagement work has resulted in memorandums of understanding being developed between some provinces and the federal government. Memorandums of understanding are agreements between provincial or territorial governments and the federal government that typically address co-ordination mechanisms, communications, information sharing and joint training. Memorandums of understanding are expected to reduce duplication and costs, enhance consistency, and contribute to ongoing collaboration and dialogue.

The Canada-Nova Scotia Memorandum of Understanding was signed in 2012 with additional memorandums of understanding between the Government of Canada and other provinces under development.

Industry

Industry representatives have expressed concerns that projects may be put at risk if Indigenous and treaty rights are not addressed. Industry on the whole has been supportive of consultations with Indigenous groups, particularly as consultations can create a more predictable climate for economic development projects. This support is demonstrated in the multi-million dollar contributions industry makes annually to support consultations and the fact that some companies have been directly engaged in consultations with Indigenous groups for years. Key informant interviews and the literature review suggest additional concerns, such as a perceived lack of harmonization between provinces and the federal government approaches (e.g., timelines, both governments should engage at the beginning of the process, eliminate overlap), a lack of clarity around roles and accountabilities, and guidance on what constitutes adequate consultation. Finally, despite the efforts in gathering and sharing information, it is not always clear to the proponent who the affected community is, and thus, which groups need to be consulted. 

The CAU has presented to internal INAC individuals and groups (e.g., Treaty and Aboriginal Government Sector Senior Management, Lands and Economic Development Sector Regional Directors), other government departments/agencies, (e.g., Department of Canadian Heritage, Treasury Board), provinces (e.g., Saskatchewan, Alberta) and Industry (e.g. Mining Association of Canada, Forest Products Association of Canada). CAU's reach is expanding with presentations to foreign governments and organizations. (e.g., a Bolivian Delegation and United States Congressional Staff). Other audiences have included the Conference Board of Canada Council on Corporate Aboriginal Relations and the Calgary Chamber of Commerce among others.

4.1.3 Contributions in the context of consultation protocols and arrangements

Section 35 rights are held by the Indigenous collective or community. Therefore, the Crown must consult with the rights-holding collective. However, determining the appropriate collective to consult may sometimes be a difficult and complex issue due to overlapping claims, disagreements among and within groups, as well as the fracturing of a once larger community over time (passage of time and events resulting in a lack of homogeneity among members of a once larger community both politically and socially). Many Indigenous groups are developing internal governance structures to manage consultation issues. Consulting with properly mandated representatives of the collective holder (or potential holder) of Section 35 rights will be sufficient to satisfy the Crown's duty to consult. But the Crown entity will need to satisfy itself that the representative has the necessary mandate.

Consultation protocols are agreements that set out an orderly and preferred process for federal and/or provincial/territorial governments and Indigenous groups to follow when consulting regarding a contemplated project or activity that may have adverse impacts on established or asserted Indigenous or treaty rights. Protocols may also be used to facilitate engagement on other matters of interest and concern to communities. Having protocols in place is expected to assist the parties by facilitating engagement, promoting relationship building and clarifying roles and responsibilities between governments and Indigenous communities.

To date, the following protocols agreements are in place:

  • Mi'kmaq-Nova Scotia-Canada Terms of Reference (2010)
  • Mi'kmaq-Prince Edward Island-Canada Consultation Agreement (2012)
  • Mi'gmag and Wolastoqiyik of New Brunswick (2014)
  • Mi'gmaq of Gaspé-Québec-Canada Tripartite Agreement on Consultation (2012)
  • Algonquins of Ontario-Ontario-Canada Consultation Protocol (2009)
  • Canada-Dene Tha' Consultation Protocol (2007)
  • Coast Tsimshian First Nations-Prince Rupert Port Authority Consultation Agreement (2011)

In addition, there are protocol arrangements under development or awaiting approvals. It should be noted that many First Nations have developed their own consultation protocols without the assistance of any level of government (e.g., Taykwa Tagamou Nation [Ontario])Footnote 21. The CAU, in the Guidelines, recommends that, although these documents are not binding on the Crown, anyone engaging in a consultation process should investigate whether such a policy already exists in the affected community.

While protocols can enhance predictability and clarify process, confusion can still arise due to different perspectives. One example cited included a participating department that had a pre-existing process in place, which it considered sufficient, while the Indigenous group thought the newly signed protocol meant they had some decision-making powers flowing from the protocol.

Another issue that has arisen is the raised expectations of Indigenous groups based on INAC's support for consultations, primarily around resources. Funding for Indigenous groups is available through the Canadian Environmental Assessment AgencyFootnote 22, the National Energy BoardFootnote 23 and the Canadian Nuclear Safety CommissionFootnote 24, each of whom have Participant Funding Programs. Provinces also provide funds to Indigenous organizations and communities to support their participation in consultations. While INAC does provide funds to support protocol development and some level of consultation-related activity (e.g., to administer and triage requests for consultation), the growing focus on consultations has resulted in some Indigenous groups being overwhelmed by requests. Many Indigenous organizations do not have the capacity or resources to meet all the requests they receive and there is now recognition by the courts that First Nation capacity challenges related to the duty to consult and accommodate is growing.Footnote 25

4.2 Intermediate Outcomes

Two intermediate outcomes were identified for the CAU as per the 2008 Results-based Management and Accountability Framework:Footnote 26

  • Clarity on the perspectives of Canada, First Nations, Métis and Inuit groups, provinces, territories and industry on key consultation and accommodation issues; and
  • Consistency in consultation and accommodation practices across government and better management of related legal and business risks.

4.2.1 Clarity on the perspectives of Canada, First Nations, Métis and Inuit groups, provinces, territories and industry on key consultation and accommodation issues

 

What we know…

The process of consultation and accommodation must be carried out in good faith and in a reasonable manner.

Consultation

The design, adequacy, scope and content of any consultation process are dependent on the particular facts. However, in all cases, consultation should include the disclosure of all relevant information, the provision of adequate time and opportunity for the Indigenous group to respond or make submissions, consideration of the necessity for further discussion of the issues raised in their response, consideration of the need for accommodation in the circumstances, and, where appropriate, identification of responsive accommodation measures, and the provision of written reasons. Accordingly, the process must be meaningful and appropriate to the circumstances, having regard to the facts in each case. Consultation should begin as early as possible in the decision-making process.Footnote 27 There is no duty to agree, but rather a commitment to a meaningful, responsive and flexible process as appropriate to the factual circumstances.

There is also a reciprocal onus on the Indigenous group(s) to fairly outline their claims with sufficient clarity, in terms of their asserted Section 35 rights and alleged adverse impacts, and to respond to the Crown's efforts to ascertain and understand their concerns and attempt to address them. The failure to do so "…would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown's constitutional duty to consult First Nations."Footnote 28

Accommodation

Not all consultation will give rise to accommodation. But accommodation is essential to the honourable process of reconciliation that is demanded by Section 35 and the honour of the Crown.Footnote 29 Accommodation is not a free standing duty, but rather a corollary to or adjunct of the duty to consult, and while the courts on occasion have referenced a duty to accommodate, it is really part of the same legal duty of consultation. In Haida, the interrelationship and interdependency between consultation and accommodation was described as follows:

"When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus, the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim and the consequences of the government's proposed decision may adversely affect it in a significant way, addressing the Indigenous concerns may require taking steps to avoid irreparable harm or minimize the effects of infringement, pending final resolution of the underlying claim…"Footnote 30           

In Mikisew, the Supreme Court of Canada explained that consultation without an intention to consider accommodation is meaningless.Footnote 31

While there is limited court commentary specifically addressing accommodation, the courts have been clear that what is required to meet the duty to consult is highly contextual. The courts have also indicated that government has flexibility in how it seeks to meet any accommodation obligation. However, the level of responsiveness or accommodation required will increase along the spectrum of the duty to consult.Footnote 32 Accordingly, the severity of the impact, the strength the right asserted, and the importance of the affected activity to the Indigenous group, will all be important factors in assessing the appropriate level of accommodation. In Tsilhqot'in, the Supreme Court of Canada said that for particularly strong claims to Indigenous title, e.g., shortly before a court declaration of title, appropriate care must be taken to preserve the Indigenous interest pending final resolution of the claim.Footnote 33

However, there is no precise formula for determining when or how much accommodation may be required. In each case, the requirement is a process that demonstrates reasonableness and responsiveness to concerns raised, having regards to the particular circumstances and balancing of the various competing interests at stake.Footnote 34The Crown is not under a duty to reach agreement, nor do Indigenous groups have a veto over the process.Footnote 35 Rather, the commitment is to a meaningful process.

While the Crown must be responsive and consider the views of the Indigenous group concerning the necessity for, and appropriate means of, accommodation, there is no right for the Indigenous group to demand a certain type or specific accommodation measure where other measures are appropriately responsive to the concerns raised and reasonable in the circumstances.Footnote 36 There is also no entitlement to the same type of relief that an Indigenous group would be entitled to if and when its rights are confirmed by a court decision or through negotiations. "Otherwise, there would be no incentive for Indigenous people to negotiate treaties or seek to prove claims."Footnote 37 Finally, what may be satisfactory accommodation in one situation may not be appropriate in other circumstances. Ultimately, the consultation process and any resulting accommodation will be assessed on the standard of reasonableness.

 

What we found….

Consultation and Accommodation Unit

There is evidence that the CAU and its activities have contributed to an increased level of clarity in key consultation and accommodation issues. The training, information sharing, Guidelines, tailored presentationsand other supports produced and promoted by the CAU have added to the understanding of the concepts surrounding the legal duty to consult and, in certain cases, accommodate Indigenous groups.

This clarity has reportedly occurred at various levels ranging from senior management to field staff. Factors contributing to this increased clarity have been included staff training and orientation, development of handbooks and guidelines, and the reiteration of the importance of consultation in department/agency strategy documents and leadership messages.

One tool to improve clarity, which was specifically noted by key informants was the consultation protocols with signatory parties that set out a clear process for consultations. The protocols have been beneficial for projects under development and for assisting in developing relationships in communities that enables a full discussion on perspectives. As noted by key informants, additional work remains to be done in negotiating and implementing memorandums of understanding with provinces and territories and protocol agreements with Indigenous communities in an effort to support clarity on consultation and accommodation issues, including clarity for industry.

With respect to industry, some key informants noted that many industry officials remain unclear on specific roles and regularly question INAC staff about roles and responsibilities for all partners involved in economic development activity. In addition, despite assessments being done at the federal or provincial level, the communities affected are not always clear to proponents. On occasion, proponents are given a list of potentially affected communities or tribal councils and left to determine precisely which communities may be affected.

Despite the clarity on perspectives that might be expected from a formal agreement, a document review examined the experience of the Mi'kmaq-Nova Scotia-Canada Terms of Reference and revealed a number of statements made by the Kwilmu'kw Maw-klusuaqn after three years of operational experience with the Terms of Reference. Although they had positive views on the inclusive development process, the commitment from the three parties, the formalization of the consultation process, and the fact that Mi'kmaq concerns have been brought to various government departments, there were a number of challenges in their view, including failure to consistently follow the terms of reference, consultation funding, communications, time gaps, and legislated timeframes.   

Another barrier to improving clarity involves overlapping claims. A report on energy development in Canada noted that such conflicting claims have been a longstanding issue among Indigenous communities, with a high potential for lengthy disputes. Such disputes may influence final investment decisions, resulting in delayed or abandoned projects. This issue is beyond the scope of the CAU or any consultation and accommodation process as it is best resolved by Indigenous communities. However, as the report noted: "Industry accepts its role in Indigenous consultations, but requires more clarity from Canada about the respective roles of industry and the federal Crown. In some instances, industry has expressed frustration, objecting to the scope of responsibilities it is expected to assume.

4.2.2 Consistency in consultation and accommodation practices across government and better management of related legal and business risks

 

What we know…

The scope of the duty to consult is highly contextual; the precise nature, scope and extent of the Crown's consultation and accommodation obligation will vary along a spectrum, informed by: the nature of the contemplated Crown conduct; the nature, scope and strength of the claimed or established Indigenous or treaty right; and, the nature and degree of the potential adverse impact. That spectrum is characterized at the low end by limited rights, or a weak claim, and potential impacts of a minor nature, and at the high end by clearly established rights or a strong prima facie claim and potential impacts of a high or serious significance.

The scope and content of the duty at the lower end of the spectrum is to give notice of the proposed conduct, to disclose information and explain the conduct, and to discuss any issues raised. At the high end of the spectrum, the scope and content of the duty is a requirement for deep consultation: which "may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on the decision."Footnote 38

In all situations, the honour of the Crown requires reasonable, good faith efforts to provide meaningful consultation that seeks to reconcile interests at stake. Meaningful consultation may obligate the Crown to attempt to accommodate concerns. The Crown must demonstrate that it has been responsive to the Indigenous concerns. Finally, it is important to recognize that consultation is an ongoing obligation and the duty may change during the course of the consultation, based upon changing circumstances and information.

The courts have generally left to government the detailed exercise of implementing processes, procedures, and tools that seek to fulfill the legal duty to consult. An awareness of the legal duty and a consideration of when and how it might apply is expected to become part of the Government's daily business. A wide array of consultation practices exist and are being implemented by federal departments and agencies across the country to better fulfill the Crown's legal duty to consult and, where appropriate, accommodate.

Moreover, a recent audit of consultation and accommodation reported that:

The development of a federal approach to consultation and accommodation is not intended to be a one-size-fits-all approach. Differences in history, geography, demographics, governance, relationships and other circumstances of Indigenous communities and organizations in Canada are relevant when considering how to address any consultation obligations that may arise. Thus, understanding the historical, geographic and legal context relevant to Crown activities is essential.

Issues addressed in the legal duty to consult are specific to the location and nature of the activity. Consultation procedures and approaches must be adapted to address the different kinds of rights and Crown obligations that are at issue. There is significant variability across the country and differences in contexts can require different approaches to fulfilling the legal duty to consult and, where appropriate, accommodate.

Departmental and agency approaches to consultation should integrate, to the extent possible, the fulfilment of legal duty to consult obligations with departmental policy objectives and with other overarching government policy objectives.Footnote 39

What we found…

Consultation and Accommodation Unit

The extent to which the CAU has specifically contributed to a consistent approach among federal departments and agencies to fulfilling the duty to consult is difficult to determine beyond its support and coordination activities. The CAU provides tools and other supports, such as the Guidelines and advice that other sectors within INAC, other government departments as well as provinces and territories can use. In the Federal/Provincial/Territorial Working Group or interdepartmental teams, the CAU staff can offer advice, review policies, and share best practices. But sectors within INAC and other government departments vary on how much they seek of CAU support in sharing their policy changes with the intradepartmental and the interdepartmental working groups. The CAU has no mandate or authority to compel these partners to follow their guidance. The CAU does not have the authority to insist on changes in proposed policies or that certain steps are followed so that accountabilities remain with the responsible organizations. However, there is a risk that actions in one sector at INAC could create legal requirements for another sector.

There is a clear statement in the Guidelines that, while each department was expected to adhere to the Guidelines, there was an expectation that departments and agencies would organize themselves to meet their obligations using a tailored approach that would best suit their needs. Attempting to enforce consistent practices across the federal and provincial/territorial governments is beyond the mandate of the CAU, conflicts with the authority of other stakeholders. Instead, the CAU offers support and guidance for federal departments and agencies as they work to fulfill their obligations around the duty to consult.

Challenges to achieving consistency with respect to consultation and accommodation can also extend beyond the federal government. Each jurisdiction - federal, provincial and territorial - is unique in its operating environment and its approach to Indigenous issues. For example, the Government of British Columbia has a centralized model for consultation and has been engaged in consultations with Indigenous groups for over twenty years and put into place its own consultation policy in 1995. It has worked closely with First Nations, developing tools, procedures, guidelines, data and information technology systems available to provincial government officials, First Nations and industry. British Columbia and Canada currently have a memorandum of understanding in place on data sharing related to ethno anthropology information. This is being used to help both British Columbia and Canada make determinations about the strength of claims, which determines the assessment of the consultation and accommodation requirements. This provides an example of federal and provincial governments cooperating to enhance consultation and accommodation practices, which may result in better management of related legal and business risks.

Another barrier to achieving consistency with respect to practices and an accompanying legal risk is the lack of clarity on what 'accommodate' actually means and how much government has to accommodate Indigenous groups where appropriate, or what kind of accommodation would be appropriate.

 

 

5. Evaluation Findings - Efficiency and Economy

The evaluation issue of efficiency and economy provides an assessment of resource utilization in relation to the production of outputs and progress toward expected outcomes. Findings from the evaluation conclude that the CAU, which is a small group with a budget of approximately $4 million in 2013-14, has positively demonstrated efficiency and economy though a number of areas, including utilizing a single window approach, technology, integration of processes and protocol arrangements. Moreover, the CAU has been successful in meetings its immediate expected outcomes and has demonstrated progress towards achievement of intermediate expected outcomes.

Single Window

The Consultation and Accommodation Unit is a small group that serves as a single window/central repository for providing information, training and advice regarding Treaty and Aboriginal Rights and consultation issues. All lines of evidence indicate that having a centralized unit is an efficient way of helping departments manage the legal duty to consult. Most departments and agencies have tools and templates, consistent with the overarching guidelines. The single window can promote consistency in Treasury Board Submission / Privy Council Office guidelines regarding legal duty to consult, it can provide greater consistency between Headquarters and different sectors and regions. Single window provides opportunity to update ATRIS functionality in a consistent way as it evolves.

Technology

The Consultation and Accommodation Unit uses technology to reduce costs such as offering some of its ATRIS training through webinars, developing and maintaining ATRIS and using its GCPedia page.

Integration of Processes

Canada's approach to fulfilling the legal duty to consult utilizes existing processes where possible, such as the environmental assessment processes.

Governance

Canada's approach to fulfilling the legal duty to consult is a good example of a horizontal approach that is providing effective change across government.

Legal Costs

First Nations often resort to litigation to seek protection for their asserted rights and interests when they believe that the Crown has not fulfilled its duty to consult. Overall, there is a high cost to Canada when issues over Indigenous or treaty rights are settled in the courts. The support and guidance offered by the CAU to federal departments and agencies in fulfilling their legal duty to consult obligations has the potential to reduce these costs.

Industry

Making information publicly available through ATRIS assists industry in engaging the right communities and avoiding unnecessary costs and delays.

Protocols

Protocol arrangements have proven to be highly cost effective. For example, one consultation with Kwilmu'kw Maw-klusuaqn, representing an aggregate of 13 individual First Nations in the Altantic, the Canadian Environmental Assessment Agency estimated a consultation cost savings of $400,000 on one project.

 

 

6. Conclusion and Recommendations

6.1 Conclusion

Relevance

The evaluation issue of relevance assessed the continued need, alignment of government priorities, and alignment with federal roles and responsibilities of the CAU in the context of the legal duty to consult. Findings from the evaluation conclude that the evaluation issue of relevance was positively demonstrated as the duty to consult is a legal duty in which the federal government has a responsibility to ensure that the duty has been properly discharged in any particular case. It is also aligned with government priorities and roles and responsibilities as the development of the natural resources sector and the need for reconciliation between the Crown and Indigenous people are government priorities.

The relevance of the Consultation and Accommodation Unit is positively demonstrated by supporting a whole-of-government approach to Indigenous consultation and accommodation and providing a central role in supporting federal efforts to meet legal obligations associated with the duty to consult.

Effectiveness

The evaluation issue of effectiveness assessed the progress toward expected immediate and intermediate outcomes of the CAU. Findings from the evaluation conclude that the CAU has been successful in meeting its immediate outcomes by providing assistance to federal departments and agencies in fulfilling the Crown's legal duty to consult, engaging with Indigenous groups and representatives, with provinces and territories and with industry with regard to that duty, and contributing in the context of consultation protocols/arrangements. There is, however, ongoing work required by the CAU if the early Action Plan principles of clarity on key consultation and accommodation issues, and consistency in consultation and accommodation practices across government are to be supported while updated intermediate expected results aligned with the current legal framework are designed.

Efficiency and Economy

The evaluation issue of efficiency and economy provides an assessment of resource utilization in relation to the production of outputs and progress toward expected outcomes. Findings from the evaluation conclude that the CAU, which is a small group with a budget of approximately $4 million in 2013-14, has positively demonstrated efficiency and economy though a number of areas, including utilizing a single window approach, technology, integration of processes and protocol arrangements. Moreover, the CAU has been successful in meetings its immediate expected outcomes and has demonstrated progress towards achievement of intermediate expected outcomes.

6.2 Recommendations

It is recommended that INAC:

  1. Continue to strengthen relationships with provinces and territories regarding consultation and accommodation in order to better align approaches.
  2. Continue to provide support and guidance to stakeholders in managing the complexity of consultation and accommodation, including supporting regional and/or specific guidance.
  3. Develop a Performance Measurement Strategy for 1.2.3 Consultation and Accommodation and revise the intermediate outcomes to align with the current legal framework.
 
 
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