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This report represents the views of the First Nations, Inuit and Métis communities and organizations which participated in the engagement process under the Canada Action Plan on Consultation and Accommodation.
Report prepared by Michelle Mann, B.A., LL.B. for the Department of Indian and Northern Affairs Canada.
On August 25, 2010, this summary report was mailed to Aboriginal communities and organizations which participated in the engagement process on Consultation and Accommodation under the Canada Action Plan. Any input on the summary report has been requested by Monday, November 1st, 2010.
In response to the Supreme Court of Canada decisions in Haida, Taku River and Mikisew Cree the Government of Canada launched an Action Plan on Aboriginal consultation and accommodation on November 1, 2007. The Canada Action Plan included engagement with First Nations, Inuit and Métis communities and organizations, provinces and territories and industry to seek their views on a federal policy approach on consultation and accommodation. In response to a Call letter, sixty-eight First Nations, Métis and Inuit communities and organizations across Canada participated in the engagement process which took place from January 2009 to March 2010.
Federal officials met with many of the organizations and communities to seek their views on specific consultation and accommodation questions posed by the federal government (see Annex A) as well as on any other questions raised by the participants.
In addition, federal officials participated in numerous other meetings, conferences and other forums with Aboriginal communities and organizations on the Canada Action Plan on Aboriginal consultation and accommodation. The federal government is appreciative of the opportunity to have met with Aboriginal communities and organizations and to receive their reports on consultation and accommodation. This synopsis represents the views expressed in reports submitted by the First Nations, Inuit and Métis who participated in the engagement process under Canada's Action Plan on Aboriginal consultation and accommodation (hereinafter referred to as ‘participants').
Participants overwhelmingly express interest in continuing to be involved in further engagement efforts on the subject of consultation and accommodation; they seek collaboration, including on any resulting policy. They identify numerous requirements for consultation to be meaningful. They state that the duty to consult cannot be interpreted narrowly and must be given full effect in order to promote the process of reconciliation mandated by section 35 of the Constitution Act 1982. Participant Aboriginal communities and organizations say they need clearer standards for the pre-consultation period and that Aboriginal communities should be prepared, with an internal consultation policy identifying community objectives, goals, and authorities. The Crown and the Aboriginal community must have a mutual understanding of what consultation means that includes
First Nations, Inuit and Métis perspectives.
Participants believe meaningful consultation should facilitate a new relationship with Aboriginal peoples based on the original relationship of nation to nation, built on a foundation of respect, trust and shared decision making. The Crown is required to initiate consultations at an early stage - as soon as the Crown has knowledge of potential and established Aboriginal and Treaty rights and title and contemplates an activity that may positively or negatively impact those rights. Participants in the engagement process said it is best to include them, at the outset, in the determination of who should be consulted. The Crown must provide timely written notice describing the proposed activity and its potential impacts. Timelines in a consultation process must be reasonable, and take into account factors such as the nature, scope and complexity of the proposed activity, the likelihood and severity of any adverse impact as well as the capacity of the Aboriginal group to participate in the consultation.
The participants further believe that government to government consultation requires that the Crown should provide human and financial resources, support and access to information and expertise. The Crown must listen with an open mind and provide feedback during the consultation and reasons with respect to any decision. The Crown must be willing to revise the original proposal before a final decision is made. Many participants feel that a meaningful consultation is conducted within a comprehensive context including elements of self-government, social policy and legislation.
A successful consultation process cannot be a one-size-fits-all approach, and must reflect principles of conduct. The Honour of the Crown involves an undivided Crown, and should be supported by coordinated federal and provincial consultation and accommodation policies and practices. The ultimate duty to consult and accommodate lies with the Crown.
Participants say that the Crown must always conduct itself in good faith and where applicable, in accordance with any protocol developed by the parties. It is important that the parties share their expectations about the desired outcomes of the process. Consultation on development decisions involves considering social and cultural impacts and sustainability in addition to potential economic benefits and environmental risks. Numerous communities communicated that accommodation is an expected outcome of meaningful consultation.
First Nations, Inuit and Métis participants emphasize the importance of seeking and integrating their unique perspectives in the development of a federal policy approach on Aboriginal consultation and accommodation so that all government activities incorporate the respective concerns and recommendations of Aboriginal communities. It is recommended by participants that elders, women and youth be engaged in the development of a federal policy on this issue.
Participants express a desire for consistency in the overall direction of all government entities. They also want to see linkages made between any consultation policy and relevant self-government agreements, treaties, negotiated arrangements as well as statutes and regulatory processes. Participants feel that the regulatory review of projects must properly incorporate the procedural and substantive concerns of Aboriginal communities at all phases.
Specific recommendations on a federal policy approach on the duty to consult and accommodate that emerge from participant feedback include: the Crown providing greater access to information; enhanced accessibility of consultation processes, including a call for multifaceted funding, Crown availability and language accessibility; and entering into collaborative discussions regarding environmental protection and sustainability.
Participants feel that education related to Aboriginal and Treaty rights and title and to the duty to consult is crucial for both Aboriginal communities and federal government officials involved in consultation. Overwhelmingly, participants stress the importance of protocols between Aboriginal communities and organizations and the federal government as a fundamental precursor to successful consultations. Participants feel that an appeal or dispute resolution mechanism must be built into any consultation policy and process.
Participants express that consultation and accommodation is not an ‘end goal' and should advance the fiduciary relationship between the Crown and Aboriginal peoples. The objective of consultation is, first and foremost, to protect the land, the culture, traditions, values and spirituality of First Nations, Inuit and Métis. To fulfill this objective, the Crown must recognize the jurisdictional and economic components of potential and established Aboriginal and Treaty rights and title, and let their consultation and accommodation activities be guided by principles for sustainable development, comprehensive land use planning, shared decision-making and revenue sharing. Participants concur that such an approach by the Crown would foster better relationships with the First Nations, Inuit and Métis and lead to consultation processes that are respectful, fair, transparent, flexible, reasonable and workable.
Participants generally view the Canada Action Plan on Aboriginal consultation and accommodation as a step in the right direction. While identifying numerous challenges, participants also highlight opportunities to move forward with the federal government in developing a consultation and accommodation policy approach. Participants expect that any resulting policy approach be endorsed by them and, on a regular basis, be reviewed and evaluated by both the federal government and Aboriginal communities and organizations to ensure that the Honour of the Crown is upheld.
In November 2004, the Supreme Court of Canada rendered the Haida and Taku River decisions. The Court held that federal and provincial governments have a legal obligation to consult with Aboriginal peoples and, where required, to accommodate their interests when the Crown has knowledge of potential and established Aboriginal rights or title and contemplates conduct that might adversely affect them. A year later, the Supreme Court of Canada decided in Mikisew Cree, that similar principles apply to the "taking up" of surrendered lands in a treaty context.
In response to these decisions, in 2005-2006 the federal government engaged in preparatory discussions with First Nations, Inuit and Métis across the country to identify some of the key issues and concerns related to consultation and accommodation. Discussions were not solely about consultation to fulfill a legal duty to consult, but also about consultation as good public policy and good governance to foster better relations between the federal government and Aboriginal peoples, to demonstrate the Government of Canada's commitment to act in good faith and to uphold the Honour of the Crown.
To demonstrate the Government of Canada's commitment, an Action Plan on Aboriginal consultation and accommodation was launched on November 1, 2007. The Action Plan included engagement with Aboriginal communities and organizations, provinces and territories and industry to seek their views on the essential elements of an effective federal policy approach on consultation and accommodation that accounts for regional contexts.
In response to a Call letter, sixty-eight First Nations, Inuit and Métis communities and organizations across Canada participated in the engagement process which took place from January 2009 to March 2010. Federal officials met with many of the organizations and communities to seek their views on specific consultation and accommodation questions posed by the federal government (see Annex A) as well as on questions raised by the participants. The federal government has received their reports and has summarized their feedback into this synopsis back to the participants. The summary report is thus organized by common themes that emerged and concludes with a discussion of best practices, recommendations and next steps.
While expressing their desire to be involved in this and any subsequent engagement efforts, participants note shortfalls in the engagement process such as inadequate timelines, funding and Aboriginal input into the development of the process. Participants indicate that more time and funding would have rendered their participation more meaningful. Participants question why there was not a jointly developed engagement process and team created in partnership with First Nations, Inuit and Métis representatives for a truly meaningful national process to occur.
Participants express a desire for the Crown to continue to work with Aboriginal communities and organizations to address the concerns raised through the engagement process. There is an expectation that the federal government will substantially consider the points raised by participants and that their contributions will be reflected in the final analysis. Participants anticipate continued involvement in reviewing any final policy approach and further developing the Interim Guidelines for Federal Officials on Aboriginal Consultation and Accommodation.
Ultimately, contributors feel there is a need for further dialogue with Aboriginal communities and organizations. The federal government must be flexible in its approach and seek collaboration, including in the development of a final policy approach. Many participants call for more detail on where Canada is going with the Action Plan on Aboriginal consultation and accommodation, on how their input will be treated and on the nature, extent and scope of their continued participation after the current engagement phase. Participants inquire about how the concerns expressed in their reports to Canada will be addressed; they ask if there will be further opportunities to input and review any resulting products or recommendations. Participants want to be involved in a meaningful and direct way in any federal policy development on what they consider to be key issues with respect to the protection of their potential and established Aboriginal and Treaty rights and title.
Participants overwhelmingly indicate that the duty to consult cannot be interpreted narrowly or technically. Canada must not base its consultation and accommodation policy on a minimalist interpretation of the case law. The duty to consult must be given full effect to promote the process of reconciliation mandated by section 35 of the Constitution Act 1982.
A set of principles need to be followed, rather than a prescriptive process. Consultations based strictly on narrow legal rights and not on good governance procedures or good corporate practices may result in later challenges in improving the relationship. Participants stress that treaty, Aboriginal and inherent rights and title have constitutional protection which has to be recognized for consultation to be meaningful.
The following elements are identified as necessary components of any consultation process if it is going to be meaningful, effective and efficient.
Participants say they need clearer standards for the pre-consultation period, advocating for a pre-consultation phase that includes early interaction with the community. Such an exchange would be an appropriate first step in pre-consultation and is most likely to lead to a more positive consultation experience and foster better relationships with the Crown. In this regard, participants advocate for a jointly designed pre-consultation process that includes developing agreed upon rules of procedure for consultation and accommodation and protocol agreements before starting to share information.
The honor of the Crown requires consideration of and respect for Aboriginal community requirements for consultation. Aboriginal communities and organizations want to be supported in the determination and implementation of their own approaches, processes and protocols regarding consultations. In furtherance of that, a number of Aboriginal communities and organizations have developed consultation tools ranging from guiding principles to policies, to toolkits to laws governing their communities and requested that the federal government consider them in the development of a consultation process. The consultation policies or guidelines typically outline such matters as the reconciliation of Aboriginal and Treaty rights and title with the assertion of Crown sovereignty, community profile, values, objectives, priorities and expectations, decision-making processes, representation and steps to be taken by proponents who wish to consult them.
The consultation process should respect the First Nation, Inuit and Métis governance structures and protocols for communicating and sharing information within their communities.
Communities expect that the Aboriginal leadership representing the rights holders in a given consultation process will seek input and validation of proposed actions from their citizens and inform them through community meetings, websites, e-mail and other electronic sources, and written reports of the status of consultations.
Participants also recommend that Aboriginal communities and organizations develop working relationships with each other for a coordinated response to government and industry through the establishment of principles, standards and expectations for resource development that involve Aboriginal interests and for input on legislative and policy initiatives affecting inherent rights and treaty rights. There may be a need for consultation protocols between Aboriginal communities and organizations with shared interests in a particular consultation process pertaining to how to share information; how to work together; and how to resolve issues such as overlapping claims and shared interests on traditional territories. In situations involving more than one Aboriginal community with interests related to a specific decision, activity or project, the parties must create opportunities to articulate respective claims and expectations, exchange information and promote respectful relations to effectively deal with issues and coordinate activities.
The Crown and the Aboriginal community must have a shared comprehension of what consultation means and that is not arbitrarily defined by government. Some common understanding about the fundamental purpose, objective and outcome of the consultation process is important. This purpose is perceived by many Aboriginal communities and organizations to be the identification of any adverse impacts on potential and established Aboriginal and Treaty rights and title as a result of the proposed activity and the manner in which impacts may be avoided, mitigated or compensated. A true inclusion of Aboriginal values, opinions and aspirations is vital.
Accordingly, Aboriginal communities and organizations should be partners at the table defining the whole consultative process. They ask to be involved in discussions with the federal government on mechanisms for consultation and input. To achieve reconciliation, participants wanted to see any policy approach on consultation and accommodation jointly developed with Aboriginal communities as full partners. Aboriginal peoples want to be partners in decision making on matters that affect their lives and livelihood.
There should be mutual understanding of the terminology contained in any policy. Where differences of interpretation occur a way of achieving consensus must be determined. Numerous participants suggest that a dispute resolution mechanism should be part of the consultation process.
Finally, concern is expressed that the Interim Guidelines for Federal Officials on Aboriginal Consultation and Accommodation reflect the development of a one-size-fits all approach to consultation and accommodation. It is essential that any policy or guidelines accommodate differences in history, geography, demographics, governance and other circumstances facing Aboriginal communities and organizations in Canada.
Aboriginal teachings and worldview inform how communities conduct business – it is important, in any dealing with an Aboriginal government, community or organization, to learn about and treat with respect the unique knowledge, values and perspective they bring to a consultation and accommodation process. Aboriginal communities must use their own principles as indigenous peoples, their own ways of thinking in their own languages. Traditional knowledge must be respected and incorporated into decision-making. Participants declare that the Creator has bestowed on them stewardship over the land and water and that they have never relinquished or surrendered, but have agreed to share, the lands and resources within their traditional territories.
It is necessary that Inuit philosophies respecting rights and duties of humans to one another and the environment be known and respected in consultations. Decision-making around consultations must be sensitive to the range of impacts of an activity or project on a community, including the spiritual, social, psychological and emotional effects. These impacts and needs can be known by talking to the leadership, elders, women and youth in the community. Even when not literally speaking a different language, differences in approach between Aboriginal peoples and government can equate to speaking a different language.
Numerous participants voice that the federal engagement process on Aboriginal consultation and accommodation should help facilitate a new relationship with Aboriginal peoples based on the original relationship of nation to nation, built on a foundation of trust and involving shared decision making. Participants observe that current government policies do not recognize Aboriginal jurisdiction, yet meaningful consultation must be based on a healthy equitable relationship between the Crown and Aboriginal peoples.
Métis participants express a desire for a federal approach to include Métis people, but not through the creation of a broad "Aboriginal" policy. They worry that, too often, government interprets "Aboriginal" as referring only to First Nations. Métis representatives state that the federal government's relationship with Métis people is evolving and that policies will need to change accordingly. For example, they recommend that efforts on consultation and accommodation be linked with post-Powley work and be founded on a government to government relationship between the Métis and the Crown.
The Crown must initiate consultations at an early stage - as soon as the Crown has knowledge of potential and established Aboriginal and Treaty rights and title and contemplates an activity that may adversely impact them. By involving the affected Aboriginal communities and organizations in the planning phase of the decision or action, the First Nations, Inuit and Métis can inform such key decisions as the Aboriginal and Treaty rights and title at play, the nature and severity of impact of projects or activities on those rights and other Aboriginal communities and organizations that should be consulted. Based on the determination of those factors through effective and timely communication, the community can assist in developing the consultation process from conception through to evaluation.
Timely written notice provided by the Crown must be accompanied by related and other relevant documents and materials describing the proposed activity and information identifying how the proposed activity may positively or negatively impact or infringe on potential and established Aboriginal and Treaty rights and title.
Timelines must be reasonable and take into account the nature, scope and any impact of the proposed activity. The affected community may have to consult with its members and may have to seek specific technical or legal advice. Traditional knowledge and data may have to be collected or analyzed. Any policy on consultation and accommodation must take into account statutory as well as seasonal timelines. This will ensure the viability of the process by providing an opportunity for substantive input from all parties involved.
First Nations, Inuit and Métis indicate that government to government consultation requires that the Crown support them in developing capacity through meaningful opportunities to participate in consultations and share in the benefits of land and resource development that enable them to govern themselves. To many of the participating Aboriginal communities and organizations, capacity for meaningful participation in a consultation process means, among other things, access to human and financial resources, timely information and legal, technical and other traditional knowledge and expertise. For example, community capacity and access to resources and expertise when assessing environmental impacts of proposals are necessary components of meaningful consultation. This includes adequate funding for Aboriginal communities to hire elders to assist in the development of traditional land and water use plans that are based on traditional knowledge; funding for professionals, properly qualified technicians and comprehensive studies.
Despite the overall call for greater federal funding for consultation processes, some participants express concern that accepting funding from governments for consultation and/or engagement should not imply that they have been consulted.
Participants state emphatically that good faith is a hallmark of the duty to consult and accommodate, including that the Crown listen with an open mind. The Crown must be prepared to meet with the community and provide updates during the consultation and reasons, in writing, to explain how the community's view were considered with respect to any decision taken.
The Crown must give serious consideration to the submissions made by the affected community and where possible, integrate those submissions into the proposed plan of action. A failure to consider the strength of the Aboriginal claim or extent of infringement represents a complete failure of consultation. Consultation must result in changes of federal position based on input received from Aboriginal peoples. This is closely interconnected with the Honour of the Crown.
Assessing the strength of an Aboriginal claim cannot be a purely internal government exercise and typically requires consultation with the Aboriginal group in question. Concern was expressed that a federal employee might be making, on his or her own, the decision on whether or not consultation is needed. It was recommended that there should be a check list developed with Aboriginal peoples to help determine the need for consultation. It was felt that the strength of claim approach does not put a focus on protecting the rights and interests of Aboriginal communities. Government attempts to establish that a particular claim attracts the lower threshold of consultation requirements is contrary to the duty of the Crown to act honorably in all its dealing with Aboriginal peoples. Government needs to take the assertion of rights over traditional territories at face value and enter into dialogue rather than evaluating the strength of claim first.
Participants indicate that an inclusive consultation process is one that is jointly designed, implemented and evaluated by the Crown and Aboriginal communities and organizations. A successful consultation and accommodation process encourages cooperation, collaboration, enhances informed decision-making and creates opportunities for meaningful representation from affected Elders, leadership and citizens on matters that will affect them as peoples and Nations.
A federal Aboriginal consultation and accommodation policy approach must accommodate and fully integrate a notion of historic Métis community that is different from the notion of community usually applied to First Nations on reserve.
The federal government also heard that urban Aboriginal people continue to have interest in their traditional territory and are entitled to be part of the decision-making process about development, to share in the benefits of development projects and to participate in decisions about how to limit negative impacts of development on the land and environment. Urban Aboriginal people must also be included in consultation processes about federal legislation that could have an impact on them. In addition, many government programs and services affect the quality of life of urban Aboriginal people; accordingly, governments cannot make informed decisions about them without discussing these issues with those affected.
A large proportion of the growing urban Aboriginal population is youth who must be engaged in decisions about their future. It is essential that needs of urban Aboriginal women and Elders be considered in developing consultation plans.
Aboriginal women and their organizations must be involved in the consultation process as full and equal partners, including funding parity with other participants. Equality of outcomes for Aboriginal men and women should be the benchmarks of any engagement with Aboriginal peoples. The participation of Aboriginal women is indispensable to all discussions including matters relating to natural resources, land, water, environment, land claims and self-government agreements. The acknowledgement and inclusion of the different ways that women experience consultation and the effects of any decision must be recognized. For any consultation and accommodation policy to be reflective of equality rights principles, a gender analysis must be completed at each step with Aboriginal women's organizations. The Native Women's Association of Canada and Pauktuutit have provided guidance to the federal government on how to make their consultation practices more inclusive of the First Nations, Inuit and Métis women.
Inuit women stress that they are an integral part of the cultural perspective and knowledge traditions that inform Inuit responses to the diverse consultation and regulatory initiatives taking place both under, and independent of, claim agreements. It is the obligation of the Crown to open doors for Inuit women to be included in consultations and to ensure that men and women benefit equally from various agreements. Given low levels of women's participation relative to men's in negotiating the Inuit claims agreements, it is all the more important to ensure that claims agreement implementation including Crown consultation duties, incorporate a gender-based analysis.
Participating communities also stress that meaningful consultation incorporates all relevant national and international laws and standards, including the United Nations Declaration on the Rights of Indigenous Peoples and the principle of free, prior and informed consent as the standard for government consultation and accommodation with indigenous peoples. Many participants believe the international standard has primacy over Canada's duty to consult and accommodate.
Many participants in the engagement process feel that meaningful consultation requires a broadened context. Participants advocate that the way of life of community members as guaranteed by treaties must be considered when consultation occurs rather than the current minimal approach of simply asking what particular trap lines or cabins etc. might be affected by an activity and infrastructure or resource development. Consultation cannot just be in respect of "site-specific impacts" but must also focus on cumulative impacts, derivative impacts and possible losses or damages to land resulting from Crown activity or decision, infrastructure or resource development. Industrial development must take place in a sustainable way to minimize the direct, indirect and cumulative social, health, cultural, economic and environmental impacts on Aboriginal rights and communities. A lack of consideration of cumulative effects was described by one community as "death by a thousand cuts".
Participants feel that the current federal consultation approach dealing exclusively with land and resources should be expanded to include elements of self-government, social policy and legislative developments on vital elements such as health, education, family, children and community well-being, and citizenship. The duty to consult is not just for land but includes laws and policies that will directly impact Aboriginal communities, including the Indian Act. The Crown's duty applies to its role as a legislator and not simply in relation to natural resource development. Participants say they want to be consulted on any federal government legislation that would apply only to Aboriginal peoples. Numerous participants contend that Canada's current position that it will not address past infringements is not acceptable; past infringements must be revisited and consulted on and where required, accommodated by Canada.
In summary, many participants feel that meaningful consultation requires the government to go beyond minimalist interpretation, noting that even where there may be no legal duty requiring the government to consult, there may be issues about which the government should talk with Aboriginal peoples before making a decision.
Ultimately, a successful consultation process is underscored by respect which includes the relationship, good faith, mutual understanding and the inclusion of the diverse Aboriginal perspectives.
Many participants feel that a meaningful consultation process cannot be a one-size-fits-all approach; it cannot be pan-Aboriginal. A ‘cookie-cutter' approach will not work: the elements of a successful consultation process cannot be prescriptive and must reflect principles as opposed to firm steps. The government should take a broad approach and should clearly state that a policy is a set of base standards; the federal government should invite practitioners to go above and beyond the minimum requirements of any policy approach in dealing with Aboriginal communities. This will ensure any consultation elements not covered in the policy can be addressed by proponents on a project by project basis.
Many participants feel that the Crown must enter into an agreement or protocol directly with communities to ensure that the consultation process incorporates the elements required to make it meaningful. More specifically, some participants feel that a protocol for the protection of Aboriginal traditional ecological knowledge from third party interests is required.
Consistency in approach by the Crown is also emphasized. For Aboriginal peoples that span numerous jurisdictions, provincial and territorial, a vast array of consultation practices are used by various responsible, statutory and regulatory authorities across Canada. This variable and subjective approach by federal, provincial and territorial governments leads to the inconsistent application of consultation approaches and practices. A consistent application of consultation approaches and practices is required among all jurisdictions when dealing with First Nations, Inuit and Métis respectively.
For example, participants expressed concern regarding the issue of conflicting regulations for resource development and consultation across provincial boundaries. They ask, "What avenue do we have to ensure that we are consulted on how resource development licenses are issued in another province that may affect our rights in our own territory?" They suggest that since this is an inter-jurisdictional issue, the government should consider this matter in any federal policy approach being developed on consultation and accommodation.
For the Métis Settlements of Alberta this issue is of particular relevance as they are concerned about possible resource development licenses being granted in Saskatchewan, adjacent to their settlement, which may affect their rights in their territory. Further, some Métis participants worried that although some regional flexibility is required, if the consultation process is not properly developed from a national Métis perspective, it could lead to distinction-based approaches and inconsistent and inadequate consultation with the Métis Nation.
Given that some communities have over 100 requests for consultation, better and effective coordination and consistency of approaches between proponents could help alleviate "consultation burnout".
Finally, it is noted that the wording used in government policies should be written in common everyday terms so that all parties can understand and that the language around the government's commitment to consult should be strengthened. Parties will then be able to contribute effectively to the process because clarifying terminology will reduce any misunderstanding.
Participants raised the point that collective rights, by nature, belong to the collective and not to distinct individuals. They cannot be alienated, extinguished, or limited by the actions of specific individuals; rather, the protection of Aboriginal and Treaty Rights can only be achieved by dealing through the representative organization of the Aboriginal collective that holds the right. Since issues relating to consultation and accommodation deal with potential impacts, infringement, or limitation of collectively held Aboriginal rights, the collective must be consulted through engagement with their democratic governance structure. For example, an individual harvester does not have the authority to agree to limitation on the community's harvesting rights outside of the collective or to reject limitations that are agreed to by the collective. To take an individual-based approach to consultation would undermine the reality that Aboriginal rights are collectively held.
Participants stress that ultimately the duty to consult and accommodate lies with the Crown, which includes the proper and timely identification and involvement of the relevant parties. Participants in the engagement process say it is best to include them, at the outset, in the determination of who should be consulted. Decisions concerning delegating procedural aspects of consultation to third parties should include the Aboriginal community from the outset using a protocol acceptable to the parties. The government must ensure the adequacy of any consultation activities undertaken on its behalf.
It is expressed that the Honour of the Crown involves an undivided Crown, supported by coordinated federal and provincial consultation and accommodation policies and practices. The distinction between federal and provincial responsibilities in matters affecting Aboriginal peoples is often not clear to Aboriginal communities and organizations. Additionally, it is stressed by several participants that the federal government must be part of the consultation process relating to public lands and resources. The general view is that, as part of its fiduciary duty to Aboriginal peoples, the Crown must lead the way in the protection of title and support Aboriginal communities and organizations in their dealings with the provincial Crown and third parties.
There must be an examination not only of the location of the proposed development, but also of the impacts to determine the communities whose Aboriginal and Treaty rights and title may be affected, including neighboring and trans-boundary First Nations. In some cases it may be appropriate for the industry proponent to be part of consultations; alternatively the industry proponent and the community could engage in a concurrent process to that of the government to also address environmental, social, cultural, spiritual and economic impacts.
Several participants emphasize that the federal government should consult directly with the Aboriginal communities and not with their regional or national representatives. Caution should be exercised in fostering aggregations for the sake of saving money and increasing efficiencies. A strong knowledge of community and regional realities should override efficiency so as to ensure effectiveness. The federal government should limit their aggregation of Aboriginal communities and only when those communities are in full agreement. The federal government must continue to provide all Aboriginal communities and organizations with all information collected through the assessment of the contemplated activity unless otherwise agreed. Concern was expressed with perceived government attempts to combine the interests of First Nations and Métis.
Certain organizations stress that while government duties to consult are owed to Aboriginal peoples collectively and not to individuals, the government must still ensure that it has plans to reach Aboriginal peoples where they live, including in urban centers. They posit that the right to be consulted when the federal or provincial government is contemplating a decision that can affect Aboriginal and Treaty rights and title is carried with an Aboriginal person wherever they are.
Métis participants indicate it would be difficult for the federal government to know with whom to speak to in Métis communities. Some say that consultation must occur with the appropriate Métis government structures that are elected and supported by the Métis people based on objectively verifiable membership and identification systems. It is the rights-bearing Métis community that must be consulted and this can be achieved through working with the appropriate Métis Nation governance structures. The Crown should make certain that the individuals or group being consulted have a legitimate mandate to represent the Métis collective that holds or asserts the right. To make such a determination, the governance, transparency, inclusiveness and accountability of the Métis group being engaged should be considered. In R v Powley, the Métis Nation of Ontario, for example, provided questions that might be appropriate for Crown decision-makers to ask in assessing the credibility of Métis communities who claim to represent a rights-bearing Métis community. Prior to initiating consultation, consistent, detailed and collaborative government-wide policies on who to consult with in the Métis context would be helpful. Governments and the Métis have pro-active roles to play in working on identifying Métis rights-holders.
Participants feel that it is best to ask them at the outset and have them be part of party identification. Developing strong relationships with Aboriginal communities was seen as the first step in ensuring the right people are being consulted. An important element of validating the consultation process is to ensure that all the decision-makers are present at the consultation sessions to allow for productive discussions and resolution of the issues. Aboriginal leaders and decision-makers expect to engage with other government and third party leaders and decision-makers and consider it as a sign of respect.
Several participants note that the Aboriginal and Treaty rights Information System on the nature and location of established and potential Aboriginal and Treaty rights and title being developed by the federal government is a viable step to ensuring that all relevant parties are identified and invited to participate in consultations. Accordingly, this repository should be developed with community involvement.
Participants overwhelmingly respond that the Crown must always conduct itself in good faith and in accordance with any protocol developed by the parties. Government must be prepared to consider community consultation policies or protocols. The Crown must listen with an open mind and be prepared to change plans before a decision is made. The parties must be committed to act in a timely manner. Equally, parties agree that they must not frustrate reasonable, good faith consultation attempts. Participants also feel that it is important for representatives of the Crown to have a respect and understanding of communities' heritage and history, as well as a familiarity with the provisions of self-government agreements.
Consultation is ultimately relationship based, with mutual respect and understanding necessarily created at the outset of the process. Many decades of distrust exists between communities and government and may negatively affect the conduct of parties. The initial asking of the Aboriginal community to be involved is a very important first step. Participants favour the negotiation of mutually acceptable consultation protocols.
Participants say that the Crown must initiate consultations with the Aboriginal community at the earliest stage: as soon as the Crown has knowledge of potential and established Aboriginal and Treaty rights and title and contemplates an activity or decision that may positively or negatively impact them. Any activity happening within a traditional territory that has the potential to positively or negatively impact the exercise of constitutionally protected Aboriginal and Treaty rights and title triggers the legal duty to consult. The extent and nature of potential effects can only be determined through an accurate and inclusive impact assessment and/or environmental review process. In particular, a federal policy approach applies where the federal government is proposing to make decisions relating to matters of federal jurisdiction, such as salmon, migratory birds or caribou.
As noted earlier, numerous participants argue for an expanded consultation context, where the Crown also consults on elements of self-government, social policy and legislation. Participants feel that meaningful consultation requires the government to go beyond minimalist interpretation of the duty to consult, talking with Aboriginal peoples before making a decision in many areas that impact the lives and livelihood of Aboriginal peoples.
At the outset, participants note that it is important that the parties share expectations about the possible outcomes of the process. The Crown must be willing to revise the original proposal before a final decision is made.
Consultation on development decisions involves considering social and cultural impacts in addition to potential economic benefits and environmental risks. Cultural sustainability is important to Aboriginal communities: as the Crown takes up land or allocates resources for development, it must maintain an environment within the lands not taken up that can sustain the way-of-life and usual vocations of communities. Adequate assessment of the extent, scope and size of the potential direct, indirect and cumulative impacts on biophysical, cultural, social and economic systems of the proposed activities and where required, accommodation measures to offset those impacts are expected outcomes. Participants also expect equitable benefit – as the Crown takes up land or allocates resources for development, it must ensure that the allocation processes and the actual patterns of land use and resource development are equitable in relation to Aboriginal and non-Aboriginal populations. Numerous participants also express that as the owners of the resources, they should have the ability to stop or prevent development.
Numerous participants communicate that accommodation is an expected outcome of meaningful consultation. This includes revenue-sharing, cultural protection, safeguarding of sacred sites, the ongoing right to monitor and a commitment to minimize downstream or currently unknown impacts. How the loss of spiritual or sacred sites might be accommodated is questioned. The Crown must work with Aboriginal communities to develop accommodation measures to address their concerns and avoid or mitigate adverse impacts on treaty or Aboriginal rights. Licenses and permits should be conditional upon industry entering into agreements with communities to provide for the accommodation of Aboriginal interests.
Participants think it is important to distinguish between accommodation agreements arrived at in the context of the duty to consult and other agreements communities enter into on a regular basis with the private sector. There is a risk that private sector companies will consider normal business arrangements, such as labour market partnership agreements, as constituting accommodation under the duty to consult. It must be clear that accommodation arrangements must result from a consultation process put into place in response to the Crown's duty to consult.
It is also noted that another possible outcome of consultation and accommodation - rejection of the proposed project - should be acknowledged explicitly. Some participants question why the guidelines don't mention compensation or mitigation. Finally, for some participants, the omission of the requirement of consent from the Aboriginal community clearly constitutes a breach of the principle of the Honour of the Crown.
Aboriginal communities and organizations want to ensure that they have the capacity and opportunity to build, enhance and maintain strong and secure cultures, languages, traditions and economies that are linked to the lands, resources and histories of their peoples. They want to share in the wealth of Canada and obtain/retain a level of economic, social and political self-sufficiency standards that are at least equal to the rest of Canada.
Ultimately, participants want the consultation process to lead to the establishment of respectful and lasting relationships. The overarching approach to reconciliation is collaborative; there is a need for a formal commitment to engage in a meaningful and timely reconciliation process respecting the duty to consult and accommodate.
Participants recognize that links with other approaches to ensure consistency in the overall direction of all government entities is important, while noting that the duty to consult lies firmly with the Crown and other policies and protocols need to be viewed in this light. While there is support for increased coordination of processes within the federal government and between governments, there is concern that harmonized processes, for example the harmonized environmental assessment process, leave consultation up to provincial governments which in turn, may not consult the rights bearing Métis communities through their associated governance structures.
Participants express the view that any federal policy on the duty to consult will not replace existing provisions in self-government agreements and treaties, but rather will supplement those provisions so long as there is no inconsistency. It is also recommended that the government adopt a federal policy approach that will make room for consultation and accommodation policies created by Aboriginal communities and organizations. These policies can work in conjunction and be harmonized with a federal policy approach.
Participants have questioned how a federal consultation policy can be appropriately applied in the context of treaties. Some advocate that any policy should acknowledge that the duty to consult applies to modern treaty rights unless the treaty in question clearly and plainly precludes it. Further, it should be noted that the duty to consult applies differently in the modern treaty context than in the context of historical treaties or Aboriginal rights. Nonetheless, general principles should guide the application of the duty to consult to modern and historical treaties in a manner that respects the nature and the underlying intention of each treaty.
Participants indicate that any consultation policy should remind the Crown that treaty rights must be respected and that the Crown cannot make decisions that infringe a treaty right simply by following a process of consultation and accommodation. It is important that Crown entities established under modern treaties understand their role in any Crown – Aboriginal consultation. Specifically, numerous participants say that the Crown must engage in open discussions with an Aboriginal signatory to a treaty before unilaterally adopting a treaty interpretation that may conflict with that party's understanding.
Participants also advocate that any policy should acknowledge the critical importance of understanding the potential environmental impacts of proposed projects and activities. The Crown or project proponent must develop and share knowledge of the potential environmental impacts of proposed projects with Aboriginal communities and organizations to engage in meaningful dialogue. Any policy should emphasize the need for Crown to ensure that there is adequate and reliable information to make sound judgments and predictions about the environmental impacts of proposed projects.
It is suggested that the Canadian Environmental Assessment Act and First Nations, Inuit and Métis consultation policies, protocols or laws governing their communities have the potential to work together to facilitate negotiation of joint policy instruments and funding agreements concerning environmental protection, sustainability and co-management.
Participants have specific process related concerns pertaining to regulatory regimes. They note that most duty to consult issues fall under regulatory regimes which involve Orders in Council. In turn, these Orders in Council are approved by Cabinet and are not available to the public. Some participants want to be informed on the progress of these Orders in Council. Participants feel that the regulatory review of projects must properly incorporate the procedural and substantive concerns of Aboriginal communities and organizations for all phases: from the design of the process through to decision-making, monitoring, enforcement and reclamation. Participants must be consulted about the design of environmental and regulatory review processes. In addition, some participants state that, on its own, the environmental assessment process upon which the Crown relies as a vehicle for consultation and accommodation does not always fulfill the legal duty to consult.
Numerous consultation best practices were identified from the perspective of the Aboriginal community and organization including:
While many recommendations emerge from participant feedback and are incorporated throughout this report, the importance of a governmental approach to Aboriginal consultation and accommodation that is holistic and culturally appropriate is thematic throughout. Specific recommendations repeatedly cited include:
Access to Information – Numerous requests are made for the development of information databases. This includes the development of a database on Aboriginal laws, regulations and Aboriginal culture, tradition and history facilitated by a consultation process with Aboriginal peoples across the country. It is also suggested that a central repository of consultation and accommodation legal information that would also include policies and practices across the country between Aboriginal communities, federal, provincial and territorial governments and industry be developed. It is noted that there is a need for independent resources de - linked from government or industry such as an arms length mechanism or the creation of a stand alone center of Aboriginal expertise to provide free independent advice to communities and organizations on consultation and accommodation issues.
Accessibility – Accessibility is a repeated theme with respect to the conduct of meaningful consultations. This includes a call by participants for multiyear core funding to be able to respond to consultations as well as project specific funding and cumulative effects funding for the identification of impacts outside of the immediate area of a proposed project. It is also recommended that the government provide an agreed annual base amount to establish Aboriginal community consultation offices.
Accessibility is also important with respect to language: both the provision of material in Inuktitut and First Nations languages as well as the overall use of terminology that all participants can understand.
Participants also advised that it is important for the Crown to be accessible during consultations. It is recommended that the Crown develop a single window approach for consultation within their departments and agencies. The single window approach will provide Aboriginal participants with clarity on who has the authority to consult on behalf of Canada and clear contacts. Consultations are about the relationship, not a filing cabinet full of papers; as such, participants note the importance of the Crown coming to communities to conduct consultations.
Environmental Protection – Participants feel strongly about the importance of entering into collaborative discussions regarding environmental protection; jointly developing an environmental protection framework; creating a process for addressing the cumulative effects of resource development; and formalizing these obligations for environmental protection through regulation and legislation. Communities are generally seeking sustainable economic development balanced by an awareness of cumulative impacts and environmental stewardship.
Participants also recommend Aboriginal community presence on boards dealing with environment and energy which can also serve as an early warning system for communities where their interests are engaged; the establishment of a policy framework to enhance certainty respecting resource development in the north; and the negotiation of resource revenue and resource sharing to support Aboriginal community participation and inclusion in northern development.
Inclusiveness – It is recommended by all participants that Elders and other cultural advisors be involved in any consultation and accommodation decision-making process. The Chief and Council members must always be aware of, included in and be coordinating any decisions involving consultations with Canada, the province, local government and other parties. It is also recommended by participants that youth be connected in this engagement process because they will have to carry and implement the results. There is a need to use technology to engage youth; it is important that they know that consultation is a right that they have. Including the interests of Aboriginal women, and requiring a gender-based analysis of consultation policies is also recommended. It is advised that the Crown should generate a national picture of women's participation in decision-making bodies and policymaking processes as well as implementation bodies that incorporate gender-based analysis in their work. Collecting and analyzing statistics and policies of this kind is a critical part of gender-based analysis. A federal Aboriginal consultation and accommodation policy approach must accommodate and fully integrate a notion of historic rights bearing Métis community that is not only different from the notion of community usually applied to First Nations on reserve but that extends to the Métis Nation as a whole.
Education – Participants recommend that training of federal employees involve cultural sensitivity and the duty to consult. Governmental staff and senior public servants dealing with Aboriginal consultation should receive training on Aboriginal and Treaty rights and title, the duty to consult and the realities of modern Aboriginal life.
Equally, it is also recommended that an education process for Aboriginal leadership that is transferable to members be developed. There was a recognized need to facilitate education for all members, but particularly youth, pertaining to their identity, their responsibilities and their treaty and inherent rights. It is also specifically recommended that the federal government provide financial resources for training Aboriginal women on consultation issues.
Protocols – Overwhelmingly, participants from across the country stress the importance of protocols or memoranda of understanding between Aboriginal communities and organizations and the federal government as a fundamental precursor to successful and meaningful consultations. Protocols are clearly viewed by participants as providing an opportunity to collaborate and work in partnership with the federal government in consultation and accommodation.
Consultation is ultimately about relationships, with mutual respect and understanding necessarily created at the outset of the process; protocols were viewed as one of the means for developing successful relationships based on mutual respect and a willingness to learn from each other.
Dispute Resolution/Appeal – Participants want to see accountability built into any federal policy approach on consultation and accommodation. Some participants feel that an appeal mechanism must be built in to ensure that the principles are followed. This appeal mechanism could be in the form of an ombudsman or committee that would consist of government, Aboriginal peoples and Elders from the communities. Other participants recommend that a dispute resolution mechanism be made available as part of any federal policy.
What follows are the next steps identified by the federal government in response to the request from participating Aboriginal communities and organizations for continued involvement in the development of a federal policy approach on consultation and accommodation.
The contribution of Aboriginal communities and organizations who have participated in the engagement process is very valuable and will continue to inform the government as it enhances its approach to Aboriginal consultation and accommodation.
The federal government is looking at various models and options to facilitate meaningful consultation in relation to activities that may have an adverse impact on Aboriginal and Treaty rights, e.g. environmental assessments, regulatory and other decision-making processes related to land, water and natural resource use and disposition.
A number of Aboriginal communities and organizations have noted that the federal engagement process on consultation and accommodation is a step in the right direction. The federal government is committed to addressing challenges and exploring opportunities with Aboriginal organizations and communities as well as provinces and territories and to promoting effective and efficient approaches and practices to fulfilling the Crown's duty to consult and, where required, accommodate.
Increased coordination and collaboration in the area of Aboriginal consultation and accommodation was also viewed by the participants as necessary to support a better understanding of the importance of undertaking meaningful consultations in relation to activities and decisions that may have an impact on potential and established Aboriginal and Treaty Rights. In this regard, federal officials are developing partnerships with Aboriginal communities and organizations, provinces and territories and industry to further explore, clarify and address consultation and accommodation issues, roles and responsibilities in a way that accounts for existing regional processes and leads to Aboriginal peoples being actively involved in decisions that affect their interests, rights, and livelihood.
In addition, in Budget 2010, Canada committed to supporting consultation with Aboriginal peoples on major resource projects and indicated that participant funding programs will be established to ensure the timely and meaningful engagement of Aboriginal peoples in the review of major energy projects.
Many of the participants have provided feedback on the Interim Guidelines for Federal Officials on Aboriginal Consultation and Accommodation that will be considered as the federal government updates them during the summer 2010. Further, to better equip departments and agencies to incorporate Aboriginal consultation and accommodation activities into their daily business, department-specific training and tools on the subject of ‘how' to consult on regional and sector-specific issues is also being developed. These practical measures will assist federal officials in carrying out reasonable consultation processes that are responsive and seek to balance Aboriginal rights and interests with other societal interests.
To continue on the right path, it is incumbent upon all those involved in a consultation process to work collaboratively and cooperatively together to develop an approach to consultation and accommodation that acknowledges and respects the Crown's unique relationship with Aboriginal peoples, promotes reconciliation of Aboriginal and non-Aboriginal interests and fosters better relations between the federal government and Aboriginal peoples, provinces, territories and industry.
Assembly of First Nations
Native Women's Association of Canada
National Association of Friendship Centres
Ktunaxa Nation Council
Stellat'en First Nation
Nazko First Nation
Upper Similkameen Indian Band
Musqueam Indian Band
Lake Babine Nation
Neskonlith Indian Band
Tsawout First Nation
Tseshaht/Hupacasath Frist Nations
Tsilhqot'in National Government
Sto:lo Tribal Council
Kaska Dena Council
Dene Tha' First Nation
Tribal Chiefs Ventures Inc.
Yellowhead Tribal Council
Treaty Management Corporation and Treaty 7 First Nations Chiefs Association
Alexander First Nation
Smith's Landing First Nation
Swan River First Nation
Tallcree First Nation
Beaver First Nation
Prince Albert Grand Council
File Hills Qu'Appelle Tribal Council
Meadow Lake Tribal Council
Southern Chiefs Organization Inc.
Assembly of Manitoba Chiefs
Manitoba Keewatinowi Okimakanak Inc.
United Chiefs and Councils of Manitoulin
Southern First Nations Secretariat
The Grand Council of Treaty #3
Assembly of the First Nations of Quebec and Labrador
Nation huronne Wendat
Bande des Montagnais de Nutashkuan
Première nation Malécite de Viger
Mohawks of Kahnawake
Mi'gmawei Mawiomi Secretariat
Conseil de la nation Atikamekw
Prince Edward Island
Mi'kmaq Confederacy of Prince Edward Island
Newfoundland and Labrador
Council of Miawpukek Band
North Shore Micmac District Council
Nova Scotia Native Women's Association
Déline Land Corporation
Sahtu Secretariat Incorporated
Akaitcho Territory Government
Council for Yukon First Nations
Nunavut Tunngavik Inc.
Métis National Council (MNC)
Congress of Aboriginal Peoples (CAP)
Maritime Aboriginal Peoples Council (MAPC)
Métis Nation of British Columbia (MNBC)
United Native Nations (UNN)
Metis Settlements General Council (MSGC)
Métis Nation of Alberta (MNA)
Métis Nation of Saskatchewan (MN-S)
Manitoba Metis Federation (MMF)
Métis Nation of Ontario (MNO)
New Brunswick Aboriginal Peoples Council (NBAPC)
Native Council of Nova Scotia (NCNS)
Prince Edward Island
Native Council of Prince Edward Island (NCPEI)
Newfoundland and Labrador
Labrador Metis Nation(LMN)
The Government of Canada consults with Canadians on matters of interest and concern to them. Consulting is an important part of good governance, sound policy development and decision-making. In addition to good governance objectives, Canada has statutory, contractual and common law obligations to consult with Aboriginal groups. The process leading to a decision on whether to consult includes a consideration of all of these factors and their interplay.
A common law duty now underlies Crown consultation in some particular circumstances. Such a duty where it arises is based on the Haida, Taku River and Mikisew Cree decisions, where the Supreme Court of Canada (SCC) held that the Crown has a legal duty to consult and, if appropriate, accommodate, when the Crown contemplates conduct that might adversely impact section 35 rights (established or potential). This duty has been applied to an array of Crown actions and in relation to a variety of potential and established Aboriginal and treaty rights.
In these decisions, the SCC also determined that the legal duty to consult stems from the Crown's unique relationship with Aboriginal peoples and must be discharged in a manner that upholds the honour of the Crown and promotes reconciliation of Aboriginal and non-Aboriginal interests. The SCC is looking at how the Crown manages its relationships with Aboriginal groups and how it conducts itself when faced with constitutionally protected Aboriginal and treaty rights. Crown decisions can be subject to review by a court prior to the final definition of an established right or the resolution of an outstanding claim. The scope and content of consultation will be proportionate to the strength of the potential right and the seriousness of the potential adverse effect of the contemplated activity. Consultation may reveal a need to accommodate.
Other than this broad general framework, the courts have thus far left the detailed exercise of implementing processes designed to fulfill the legal duty, to government. An awareness of the duty and a consideration of when and how it might apply and how it corresponds with existing departmental or agency consultation policies must become part of the government's daily business including such activities as operational decisions, policy development, negotiations and legislative processes.
To better develop this awareness the Government of Canada has launched an Action Plan on consultation and accommodation, which is comprised of several elements. One of the critical elements of this Action Plan is an interactive process where federal officials will come together with national, provincial and territorial Aboriginal groups and communities, provincial and territorial governments and industry representatives to discuss key policy issues. The purpose of these discussions will be to inform the development of options for a federal approach on consultation and accommodation. It is expected that such an approach will enable the legal duty to be fulfilled in a more consistent, coherent and efficient way across the federal government. Taking into account the different situations and interests of Aboriginal groups across the country, Canada recognizes the need to implement some elements of a federal policy approach in a manner that reflects such regional needs.
Given the stated purpose of the engagement with Aboriginal groups, provinces, territories and industry representatives, the Government of Canada is interested in hearing your views with respect to the following:
How can you be involved?
The engagement activities are intended to be part of a meaningful engagement process to interact with Aboriginal organizations and communities on various aspects of consultation and accommodation policy development and are expected to involve primarily discussions and information sharing with regards to consultation and accommodation. These discussions with Aboriginal organizations and communities serve as a means to collectively present their perspectives and to meaningfully contribute to the creation of policy positions to address some of the consultation and accommodation issues advanced by them, the federal government and others.
Additionally, First Nations, Métis or Inuit groups may propose to provide their input by producing discussion and/or policy papers that:
To request additional information you can contact the Consultation and Accommodation Unit at Indian and Northern Affairs Canada at email@example.com.