Consultation and Accommodation Advice for Proponents

DRAFT

Introduction

This document is a draft of advice for proponents that could be included in the third edition of the Guidelines for Federal Officials to Fulfill the Duty to Consult. This document is an expansion on the ideas that were introduced in 2011’s Updated Guidelines for Federal Officials to Fulfill the Duty to Consult in terms of the roles and responsibilities of third parties. This draft guidance is based on many of the principles and best practices for consultation highlighted in the Guidelines and is intended to provide proponents with high level guidance on how to meaningfully work with Aboriginal groups. This document will be discussed with Aboriginal groups, provinces, territories and industry proponents as part of Canada’s engagement process on the development of the third edition of the Guidelines for Federal Officials, the development of a public statement on Canada’s approach to Aboriginal consultation and accommodation and the development of additional guidance for proponents.

While the duty to consult is an obligation that rests with the Crown, the Government of Canada will, where appropriate, expect industry proponents to carry out significant procedural aspects of consultation on a proposed project. The Government of Canada will also rely on the impact avoidance, mitigation, offset and compensation measures carried out by industry, where appropriate, for accommodation purposes. (Guiding Principle no. 8 of the upcoming Third Edition of the Federal Guidelines for Federal Officials to Fulfill the Duty to Consult).

The Government of Canada expects industry to establish positive working relationships with Aboriginal groups and to maintain these relationships throughout the life cycle of their projects. As our understanding of the duty to consult evolves, these relationships have become increasingly important in how proponents do business. Communication between Aboriginal groups and industry proponents often begins long before the project is submitted for federal review or decision. As such, industry proponents may be in a position to adjust the scope of their projects to address the needs and concerns of Aboriginal groups well in advance of seeking federal approvals. Should the Government of Canada rely on the activities of industry proponents in meeting its obligations, it will clearly communicate this reliance to both the proponent and the potentially affected Aboriginal groups.

The information below provides an overview of some of the considerations that industry proponents should include in the planning and implementation of their consultations with Aboriginal groups. Tools and resources have been identified to support proponents in carrying out consultations that the Government of Canada can then rely upon in discharging its duty to consult.

Prior to carrying out any work on a proposed project, proponents, as the experts in their lines of business, are expected to know the potential impacts of their activities on the environment and the concerns that Aboriginal groups may have with those impacts.

STEP ONE – Preparation and consultation

A. Clearly describe the proposed project

Proponents are expected to develop clear and easy to understand information on their proposed projects. The nature and extent of information required by each Aboriginal group may vary, as groups have differing levels of technical capacity. Proponents are expected to determine these information needs by working in concert with potentially affected groups as much as possible. Proponents should plan to develop materials to speak to as broad an audience as possible and may need to consider enhancing information sharing by translating materials into Aboriginal languages. Providing clear information to Aboriginal groups at the outset can support a more efficient identification of adverse impacts and the identification of potential avoidance, mitigation and offset measures.

Proponents are encouraged to be collaborative and responsive to Aboriginal groups in the proposed project area, in ways that will promote relationship-building.

B. Identify the potential impacts of the proposed project

Describe the potential impacts of the proposed project (e.g. on the environment). Identifying impacts in this manner will assist in describing the potential adverse impacts of the proposed project on potential or established Aboriginal or treaty rights.

C. Identify potentially affected Aboriginal groups

During the design and development phases, proponents are expected to identify Aboriginal groups in the proximity of its proposed project.

Tip: The Aboriginal and Treaty Rights Information System (ATRIS) is a Web-based system intended to provide up-to-date, site-specific information on the potential or established Aboriginal or Treaty rights of Aboriginal peoples across Canada. This system can also provide contact information for communities and leadership of Aboriginal groups in a proposed project area.

Industry will also benefit from using consultation protocol agreements entered into between Canada, Aboriginal groups and provinces/territories. By using these agreements, industry can access a number of communities through a single window. This facilitates the identification of interested communities and more timely and predictable processes. These agreements, including contact information, are also accessible through ATRIS.

D. Develop the relationship

Prior to beginning consultation activities, proponents are advised to have initial discussions with the potentially affected Aboriginal groups to better understand their concerns, issues and opportunities. Ask the potentially affected Aboriginal groups how they wish to collaborate with your company.

Tip: Learning more about the Aboriginal groups that you will be engaging with can support more meaningful conversations and allow each party to better understand the other. Seek out opportunities for Aboriginal and cultural awareness training to build the capacity of staff in advance of engagement.

E. Carry out consultation activities

Tip: Consultation processes may vary from group to group. Work with each Aboriginal group that may be affected by the proposed project to jointly determine to most effective type of consultation process for both parties.

Consultation activities can range from letters to groups, face to face meetings, community forums, site visits, information sessions and workshops. The types of activities required will vary depending on the nature of the proposed project, the nature of the adverse impacts, the capacity of the Aboriginal group and other requirements. The process required for a project will be informed by discussions with the group. In general, the greater the degree of potential for adverse impacts on an Aboriginal group, the more intensive the consultation should be.

To fully understand the nature of the potential adverse impacts on potential or established Aboriginal or treaty rights, information gathering exercises such as traditional use studies may need to be explored with the Aboriginal group(s). It may also be possible to make use of previous traditional use studies carried out by the Aboriginal group(s). Proponents can determine, in consultation with the groups, whether this previous work is relevant for use on their project. Information in addition to that found in tools such as Aboriginal and Treaty Rights Information System on the potential or established Aboriginal or treaty rights may also be provided during discussions with the Aboriginal group.

To maximize the degree to which industry activities can be used by the Government of Canada to fulfill its obligations, industry proponents should ensure that:

  • Consultation with Aboriginal groups occurs early and throughout the lifecycle of the project
  • Consultation with Aboriginal groups is well documented, including the nature of concerns and the nature of potential or established rights and related interests as described by the groups that may be adversely affected by a proposed activity
  • Where concerns have been raised by Aboriginal groups, industry must clearly demonstrate and document how concerns have been addressed and which concerns have not been addressed.

Tip: Modern treaty signatory communities may have specific consultation requirements and specific roles and responsibilities for proponents described in their treaties. Information on these treaties can be found in the Aboriginal and Treaty Rights Information System.

The proponent is responsible for reasonable costs incurred by its consultation activities (e.g. proponent led community meetings, information sessions, etc.), including costs related to any relevant adjustments to its proposed project that seek to avoid, mitigate or offset potential adverse impacts on Aboriginal or treaty rights. Proponents should maintain a record of the capacity assistance (e.g. expert reports, traditional use studies, in-kind assistance, etc.) provided to Aboriginal groups as this information supports the assessment of adequacy of a consultation process.

F. Maintain the relationship with Aboriginal groups and address concerns

Proponents are expected to maintain productive working relationships with Aboriginal groups throughout the project and work with those groups to identify ways to respond to adverse impacts and concerns. Consultation rarely consists of a single conversation with a potentially affected group. Proponents should bear in mind that consultation is a process and there are feedback loops between different phases of consultation. For example, if new information becomes available throughout discussions with a group, new adjustments to the project design may need to be made.

Proponents should bear in mind that:

  • Any impact avoidance, mitigation or offset measures (examples in Table 1.) must address adverse impacts on potential or established Aboriginal or treaty rights in order to be relied upon by the Government of Canada in discharging its legal duty to consult.
  • Corporate social responsibility measures, such as employment and social benefits, may not address adverse impacts on potential or established Aboriginal or treaty rights.
  • If an agreement (e.g. an impact and benefits agreement) is negotiated between an Aboriginal group and the proponent in respect of a particular project that contains elements that may help to avoid, mitigate, or offset adverse impacts, relevant, non-confidential clauses of this agreement should be communicated to the Government of Canada.
  • Robust consultation and accommodation activities carried out by proponents do not guarantee project approval.
Table 1. Examples of Potential Accommodation Measures
Type of MeasureAvoidanceMitigationOther Measures
Nature of Measure Postpone key project activities to limit impact on sensitive seasons (e.g. harvest, hunting, spawning seasons)

Divert pipeline course to avoid sensitive areas

Divert access roads to avoid wildlife corridors
Finance transportation to other similar sites where traditional practices can resume.

Conduct archaeological excavations with community to retain and preserve artifacts
Finance the creation of a training and education program for youth on traditional ecological knowledge

Restore habitat to pre-project levels or better, post-project

Create or enhance wildlife corridors

Tip: It is important to validate what has been stated during a consultation process with the Aboriginal group. In order to be relied upon by the Crown, the information collected during a consultation process and any related avoidance or mitigation measures should be validated with the relevant Aboriginal group.

STEP TWO – Working with federal departments and agencies

Proponents, in preparing their project submission to the Government of Canada, will be required to provide detailed information to federal officials on their consultation activities with Aboriginal groups. This information includes:

  • A listing of the Aboriginal groups with whom the proponent conducted consultation activities
  • The identified potential adverse impacts on potential or established Aboriginal or treaty rights and concerns
  • The avoidance, mitigation or offset activities carried out or promised, including changes to the proposed project
  • Any outstanding issues, including a summary of discussions on and status of those issues

For a variety of reasons, it is possible that the Government of Canada might consult with a different list of Aboriginal groups compared to those groups with whom a proponent has already met. Proponents may be asked to carry out additional consultation activities with these additional groups, if applicable. A quick response to identified additional consultation activities supports faster federal decision making. Early communication with the Government of Canada helps ensure that proponents are aware of requirements and that expectations of each party are clear.

Tip: Federal, provincial or territorial requirements for consultation may vary. In many cases, the consultations that proponents carry out can support both federal and provincial or territorial decision making. Proponents should contact the relevant provincial or territorial departments or agencies to learn more about specific requirements.

STEP THREE – Responding to the Government of Canada

Federal officials may require additional information of proponents related to the information that was submitted on the proponent’s consultation activities. Proponents are expected to work with federal officials in responding to these questions and addressing concerns raised.

Example: After the submission of a project description, proponents may be required to provide the Government of Canada with additional information on the proposed project’s potential impacts on the section 35 rights of Aboriginal groups which could result in additional consultation activities.

STEP FOUR – Environmental Assessment (EA) Phase (if required)

Projects that require an environmental assessment go through a defined process. A proponent is expected to support the Government of Canada in discharging its duty to consult by continuing its relationship with Aboriginal groups. Additional changes to the project may occur during this phase based on the outcome of additional consultations. The Government of Canada may also carry out its own consultation process in addition to the proponent’s activities.

In some cases a federal environmental assessment may not be required for a project, but a provincial one may be. In these cases, proponents are encouraged to work with the relevant province to determine their requirements.

STEP FIVE – Regulatory Decision making

Each type of project has varying requirements for submission for government review. Some projects will require an environmental assessment, where others will not have this requirement but may have other regulatory decisions that need to be carried out. Proponents should make themselves aware of the submission requirements for the particular government authorization (e.g. permit or license) their project requires. Additional changes to the project may occur during this phase based on additional consultations and other federal requirements.

STEP SIX – Ongoing Relationship and commitments to Aboriginal groups

As part of the range of consultation activities with Aboriginal groups, project proponents may be required to carry out follow-up and monitoring activities related to their proposed projects and their impacts. These activities may be in addition to any terms and conditions that Canada may place on its approvals. If an agreement is struck between a proponent and an Aboriginal group that addresses adverse impacts, this information needs to be communicated to Canada.

Further resources for industry proponents

Please consult the Resource Library tab of the Aboriginal and Treaty Rights Information System (ATRIS) for additional resources for proponents.

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