Indigenous consultation in 2019: an outlook for project proponents

In taking stock of their large projects in Canada and considering what 2019 will hold, many proponents will likely focus on their project’s consultation with Indigenous peoples.

This consultation can be critical to the success of a project for many reasons, including:

• reaping the benefits of creating a “win-win” scenario where both the proponent and any potentially affected Indigenous people want the project to proceed and thrive for its lifetime;
• ensuring the proponent’s consultation team, project management team and board of directors are all aligned with an accurate view on consultation; and/or
• reducing the risk that the issuances of approvals are delayed or denied by a government or successfully challenged on judicial review.

And for many projects that have not yet received their key approvals, proponents thinking about the year ahead will want to ask these three crucial questions relevant to the consultation:

1. Has “meaningful consultation” occurred, or will it occur, with respect to the project?
2. How may Canada’s implementation of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) affect the project’s consultation?
3. How may other change to a government’s general approach to consultations affect the project’s consultation?

This article unpacks issues underlying these questions for proponents looking to move their projects forward in the year ahead.

Meaningful consultation

In recent years, the issuance of approvals for large energy, mining and infrastructure projects in Canada have repeatedly been delayed, denied or quashed due to a lack of “meaningful consultation” with Indigenous peoples. While the federal or provincial government (Crown) is responsible for discharging its duty to consult Indigenous peoples, the proponent often bears most of the consequences if the issuance of an approval is delayed, denied or quashed. As a result, both the Crown and proponent share an interest in ensuring that meaningful consultation occurs.

Since the Crown is responsible for discharging the duty to consult and assessing that this duty has been discharged, proponents may not have sufficient visibility into whether meaningful consultation has occurred. In scenarios where the Crown has delegated procedural aspects of the consultation to proponents, they will have better visibility regarding at least those aspects. However, it is critical that proponents “see” enough of the consultation process if they are to effectively assess whether meaningful consultation has occurred. In our experience, proponents typically either have a sufficient view of the consultation or can it obtain it, although this visibility aspect is sometimes not fully appreciated.

If meaningful consultation has not occurred… it may be time to consider how meaningful consultation can be achieved and what work may need to be done with the Crown and any potentially affected Indigenous people to achieve this.

Once a sufficient view of the consultation is obtained, the determination of whether meaningful consultation has occurred requires careful consideration and analysis. This determination is context specific and includes understanding the strength of the right or title claim, and the seriousness of the potentially adverse effect on the right or title claimed.¹ Proponents and consultation teams may conduct this determination formally or informally in real time or at set times. Given the importance of this determination, some proponents seek an independent perspective both to calibrate consultation and their assessment of the consultation.

If meaningful consultation has occurred, proponents may want to consider how this would be demonstrated if required in a judicial review. If meaningful consultation has not occurred, proponents may want to consider whether any further planned steps are expected to achieve meaningful consultation and if not, it may be time to consider how meaningful consultation can be achieved and what work may need to be done with the Crown and any potentially affected Indigenous people to achieve this.

The effect of UNDRIP on consultation

Increasingly, UNDRIP is being raised in consultations and UNDRIP’s implementation in Canada may affect some consultations. While a detailed discussion of this important topic is beyond the scope of this article, for the purpose of identifying this as an issue for further consideration, we provide the following highlights:

• UNDRIP addresses, among other things, circumstances where states must consult Indigenous peoples with the aim of obtaining their free, prior and informed consent and circumstances where states may be required to refrain from action if consent is not obtained.
• As a resolution (not a treaty), UNDRIP is not binding as a matter of Canadian law. However, UNDRIP is widely viewed as representing international consensus regarding the minimum set of rights for Indigenous peoples.²
• Through various measures (such as, Bill C-262 and British Columbia’s Bill 51), UNDRIP and/or its concepts are being incorporated into Canadian law.
• UNDRIP and some of the related measures are subject to multiple interpretations. Thus, there is uncertainty regarding how, among other things, consultations in Canada may be affected.

As a result, proponents may want to consider the implications of UNDRIP and measures implementing it that may be relevant to their projects. Given the importance and complexity of such issues, proponents may benefit from considering such issues before they are raised in the consultations (to avoid delays and limiting proponents to a reactive approach).

Other changes to Crown’s consultation approach

While the courts have specified minimum standards for consultation, the Crown’s approach can greatly affect how consultation is conducted beyond those standards. For example, the Crown’s approach to consultation can affect the time period over which the consultation is conducted, the extent to which the proponent is involved in the consultation and how information is communicated during the consultation. As a result, changes to the Crown’s consultation approach may affect a project in a variety ways.

Change in the Crown’s consultation approach often occur with new governments or the Crown’s evolution in policy (such as, British Columbia’s Bill 51). With elections scheduled in 2019 across Canada, both federally, and provincially in Alberta, Newfoundland and Labrador, Northwest Territories and Prince Edward Island, the Crown’s approach to Indigenous consultation in various jurisdictions may change this year or shortly afterwards, which creates uncertainty for proponents and the potential for consultations to be delayed.

In scenarios where the project’s consultation can be completed prior to such changes being implemented, proponents may be eager to facilitate meaningful consultation to avoid the uncertainty and delay related to such changes. For projects where that is not feasible, the pursuit of meaningful consultation may still be the best way to mitigate a project’s consultation risks of uncertainty and delay.

Conclusion

Proponents of large projects in Canada may want to consider in 2019 the three questions described above, including to ensure key internal stakeholders like the consultation team, project management team and board of directors all have aligned, accurate views on the project’s consultation. Considering these questions can also identify strategic opportunities or consultation shortcomings that a proponent may want to address as soon as possible with the Crown and/or any potentially affected Indigenous people.

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¹ See, for example, Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73 at para. 39.

² The Honourable Frank Iacobucci, et al., “History and Development of the Principles of Free, Prior and Informed Consent” para. 35 and 36.