Part IV - Towards a New Relationship to Facilitate Reconciliation

Free, Prior and Informed Consent in Canada: Towards a New Relationship with Aboriginal Peoples

Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples

73. The commonalities and differences between the principles of free, prior and informed consent in the Declaration and the duty to consult and accommodate in Canadian law have been the subject of much analysis and discussion. Both are procedural obligations that facilitate a process aimed at reconciling Aboriginal rights and interests with the wider societies of which they form a part. Both provide guidance for an engagement process to be conducted prior to government action that may affect Aboriginal rights. Both establish that the nature and extent of this process depends on the context at hand.

74. On balance, the two are similar in scope and effect and are fundamental bases for Indigenous involvement in projects. We would like to turn in the balance of this paper to specific examples and principles which we feel can help guide the way forward in practice. In this part of the paper, we will talk more about partnerships, engagement, participation, and address substantive issues with and impacts of the project, with less focus on consultation and accommodation. The latter nomenclature is rooted in the Canadian jurisprudence; while we certainly believe that parties must comply with the jurisprudence, we suggest that an approach that is focused on relationships and parties’ underlying interests from the outset—rather than positions or strict legal rights—provides the foundation for meaningful engagement and sets the stage for a successful outcome for all involved.

75. We recommend an approach to meeting the letter and spirit of domestic and international standards by focusing on the following elements.

  1. Relationship: The focus must be on building a long-term relationship between the government, project proponents133 and Indigenous peoples, grounded in mutual respect and trust, and not on merely completing a check-list.
  2. Model of partnership: The model of partnership, in which multiple groups come together for mutual benefit and to accommodate each other’s interests, should govern the project.
  3. Procedural and substantive participation: Indigenous peoples should have the opportunity to meaningfully participate in all aspects of the project. This participation has both procedural and substantive dimensions.
  4. Involvement of government to align incentives and facilitate: Governments by necessity are involved in the consultation process, as the duty is ultimately theirs. Governments should also help align project proponents’ and Indigenous peoples’ incentives so that they can more easily find common ground.

76. We describe each of these elements in more detail below.

Building a relationship requires an interests-based approach

77. Engagement with Indigenous peoples on a particular project should be approached from the perspective of relationship-building—as between the Indigenous peoples concerned, the relevant governments, and the project proponent.

78. This relationship must be founded on mutual respect and trust, the importance of which cannot be overstated. Mutual respect and trust cannot simply be proclaimed. They must be built on positive, ongoing and mutual conduct and action through meaningful engagement. Where established, this foundation allows a deeper appreciation of all parties’ interests in the context of a discussion that will likely address sensitive issues. The government and project proponent must understand that, in some way, all Indigenous consultations are related to Canada’s historical treatment of Indigenous peoples and are part of the ongoing process of reconciliation. Acceptance and respect of this basic tenet will allow for the building of a dialogue and relationship that can lead to a successful outcome for all parties.

79. A good faith engagement process in most circumstances requires parties to meaningfully understand each other’s interests over the short, medium and long term. Any engagement process should begin by focusing on the parties’ interests, rather than an analysis of what rights are strictly held at law and the degree engagement that is required as a result. While the law forms the backdrop to the process and may inform the nature of the ultimate process adopted and the outcomes sought, it is generally counter-productive for parties to approach consultation seeking to do no more than the minimum that is required. Likewise, an inflexible “positional” or “hard bargaining” attitude to engagement, without regard to underlying interests and their relative significance, is unlikely to assist any party. A good faith attempt to genuinely understand and, to the extent possible, address each other’s interests, will better facilitate a relationship aimed at a positive outcome.

80. While domestic and international consultation obligations apply to Canadian governments, the project proponent also has a significant role. In practice, consultations in respect of specific projects are carried out in whole or in part by private sector project proponents. An approach to consultation focused on an interests-based relationship best enables parties to take the long-term view necessary to facilitate reconciliation between Indigenous peoples and the Crown.

The model of partnership

81. In designing an approach to achieve an interests-based relationship, it may be beneficial for project proponents and Indigenous peoples to approach each other with the relationship of a partnership in mind.

82. This does not necessarily mean partnership in the legal sense, but it does mean a relationship that includes the elements of good faith, transparency, collaboration, and recognition of each other’s capacities and constraints. Such a partnership should be understood as a process in which two or more groups come together with the aim of mutual benefit in a manner that addresses each party’s unique set of interests. A partnership mindset encourages all parties to consider Indigenous peoples not as the “recipients” of consultation but as partners in the design, operation and success of the project.

83. A partnership mindset encourages all parties to consider each other’s interests in a more fundamental manner and with a longer-term view, building a relationship that respects the underlying Indigenous rights, interests and dignity involved.

Meaningful participation

84. Flowing from the mindset of partnership, what does a good faith and meaningful engagement process look like in practice? There is no cookie-cutter model to follow; any engagement process is context-specific. Both Canadian and international law clearly indicate that this in part depends on the nature of the Aboriginal rights at issue and the potential harm that the proposed project activity would cause. In practice, it also depends on the history, capacity, challenges, issues and opportunities of the particular Indigenous peoples that are involved.

85. With this context-specific reality always front of mind, a mindset of partnership enables us to set out certain guidelines or best practices.

Procedural participation

86. In our experience, four principles should guide any relationship among government, project proponents and Indigenous peoples in relation to a project: (a) there must be engagement regarding the procedure to be followed; (b) there must be engagement from an early stage (where possible) and on an ongoing basis; (c) Indigenous peoples must be provided with sufficient information for a meaningful process; and (d) resources (both financial and human) will be required to facilitate the process.

87. At the outset of the project, representatives of all Indigenous peoples that may be affected should be contacted through their own representative institutions, and should be engaged in a dialogue regarding the proposed project and the type of engagement process they view as warranted. This can be a difficult and complex process, as there may not be a single set of representatives or institutions to address. Ideally, the procedure itself would be the product of consensus.134 Though it may be difficult, finding consensus on the procedure is likely to engender a climate of confidence and mutual respect, both in the process itself and in the Indigenous people's ongoing relationship with the project proponent and the Crown.

88. In many cases, especially those with significant potential impact on Indigenous rights, it will be important to build a relationship with affected Indigenous peoples from an early stage of the project. They should be involved in the project’s conception and design and concrete mechanisms should be in place for input from Indigenous traditional knowledge, oral history, and ways of life and experience.

89. Because circumstances often change, events arise, projects evolve and project timelines usually unfold over a number of years, the process will likely need to continue throughout subsequent stages of the project’s design, regulatory approvals, construction, operation and decommissioning, as needed. All parties should be willing on an ongoing basis to meaningfully address issues as they arise or become known.

90. Indigenous peoples must be provided with information about all aspects of the project that may affect them. This may include the preparation and review of environmental and social impact studies, as well as an assessment of how the project might affect the rights and interests of the Indigenous peoples concerned.135 Without sufficient information it will not be possible to have an informed process, and that process will likely suffer a deficit of legitimacy.

91. However, in any project there is a tension between completeness of information and constraints on what can be known. It must be recognized that more information can always be obtained, and more studies can be done. The question to be asked is what information is necessary for Indigenous peoples to meaningfully engage in the process on an informed basis, bearing in mind their rights and interests.

92. It is also important to emphasize that engagement is a two-way process, involving mutual interaction and exchanges of information between project proponents and Indigenous peoples. Inasmuch as project proponents must share all relevant information, they must also listen to Indigenous peoples with a mind that is open to accommodating their interests and concerns. An engagement process will be most effective where Indigenous peoples demonstrate significant commitment to sharing their views as well.

93. The project proponent should be mindful that, though some Indigenous peoples in Canada are well-resourced, most are among the most marginalized segments of the Canadian population. This marginalization is a result of precisely the same historical disadvantages and disentitlements underlying the imperative of facilitating reconciliation between Indigenous peoples and the Crown. These same groups cannot always be expected to have the resources necessary to engage in a consultation process as an equal to the project proponent or the Crown.

94. In this context, meaningful engagement may require the provision of financial, technical, legal or other resources (including translation into local Indigenous language(s)). While primary responsibility for addressing this asymmetry lies with the Crown, project proponents must nonetheless be aware of this issue and may be required to take steps to remedy it. The provision of resources to facilitate engagement will often help facilitate project-related collaboration, as well as building a longer-term relationship that helps achieve reconciliation.

95. Many successful engagements that we have been involved with have involved an up-front articulation of shared foundational principles. While this can be a time-consuming exercise, if done properly, it can clarify expectations and set parties up for success. Such engagements that we have seen have included: recognition and affirmation of constitutional and treaty rights; a commitment to openness and transparency; a commitment from senior-level individuals involved in the process to mutual respect and understanding, to participation in and accountability to the process, to meaningful participation of Indigenous peoples in the project, and to a positive and long-term relationship; establishment of a negotiations committee and working groups; and funding mechanics. These principles should be formalized in a written document that, while not necessarily intended to create legal or justiciable rights, serves to guide each party’s conduct.

96. It can also be effective if parties are able to reach a high-level agreement regarding the applicable reasonable timelines, so as to avoid unrealistic expectations, on the one hand, and on the other hand, to set expectations regarding the process and avoid project fatigue.

Substantive participation

97. Once procedural principles are agreed to, parties find it easier to focus on the specific details of the project, their ongoing relationship, and Indigenous peoples’ substantive participation. Substantive participation can, for discussion purposes, be grouped into two main areas: impact mitigation and sharing of benefits.

98. Measures to safeguard or minimize the impact of the project on Indigenous peoples may be a crucial substantive element to a successful project. The Special Rapporteur has noted that attention should be paid to impacts on the environment, health, economic activities the Indigenous peoples undertake on the land, and places with special spiritual or historical significance.136 The project proponent and the Indigenous peoples concerned may want to design mechanisms for monitoring these impacts over the life of the project and a procedure to remedy significant harms.137

99. A true partnership between Indigenous peoples and project proponents that respects Aboriginal rights in land, results in some form of sharing in the benefits of the project. The Special Rapporteur is one of many commentators to highlight the need to depart from the traditional model of project development in which Indigenous peoples see little control over and benefit from projects on their lands.138

100. Project proponents and Indigenous people have aligned their interests in a variety of areas to achieve successful and enduring relationships and projects. These include: socioeconomic matters; economic benefit and revenue sharing; project involvement, management and decision-making; skills training and education initiatives; and employment and procurement opportunities.

101. While there is no “one-size-fits-all” partnership arrangement between project proponents and Indigenous peoples, in our experience Indigenous peoples and project proponents have sought to address some or all of the following issues: equity participation levels; funding of equity, including loans to Indigenous partners to fund their contributions; project layout, design and routing; incorporation of traditional knowledge; recognition of cultural values; impact on the environment, ongoing environmental monitoring and protection, and decommissioning planning; decision-making regarding issues such as project budget, schedule, debt financing; entering into material contracts; and assignment of responsibility for and participation in various permitting and other regulatory procedures.

102. In addition, projects that we have been involved with which have successfully engaged and involved Indigenous people often incorporated an explicit and detailed delineation of roles and responsibilities among the different parties involved, including the project proponent, Band Chief and Council, Economic Development Office, individual Indigenous people, and governments.

103. Where the foundational principles discussed at paragraphs 95 and 96 have been agreed upon in advance, parties are better placed to address these matters. In so doing, they expose their respective interests and objectives, and begin the hard work of relationship-building.

Government’s role in facilitating engagement

104. The mindset of partnership in approaching an interests-based consultation process facilitates both the Crown’s compliance with its legal duty to consult and accommodate, as well as the commitments that many corporations have voluntarily undertaken. Governments should play a role in consultation, in particular, by: (a) helping align parties incentives to reach mutual agreement; (b) providing guidance on the appropriate form of consultation; and (c) resolving outstanding Aboriginal rights and title claims in a manner that clarifies rights and provides a foundation for other mutually beneficial relationships.

105. In our experience, project proponents and Indigenous peoples find it useful to consider what constructive role government may play in the particular consultation process they face. Governments are uniquely empowered to align incentives for both project proponents and Indigenous peoples so that they may reach mutually beneficial agreement. For example, in Ontario, the renewable energy procurement program provides an economic benefit (in the form of an increased purchase price) for electricity generated from projects with a specified level of Indigenous involvement in the project. In addition, other incentives may be used to further align the consultation process, including by providing data, studies and other support to the information-gathering processes and by providing technical expertise (or funding to retain such expertise) to Indigenous peoples. Governments should actively embrace this role and do so more often.

106. Where the scale of a project is large or involves significant impact on Aboriginal rights and interests, it can be effective for the applicable government to negotiate an agreement with the Indigenous people(s) involved setting out each other’s mutual obligations and responsibilities in the consultation process. Such agreements, rather than outlining specific roles for parties, rights, impacts or benefits, serve from the outset to establish common principles on which the consultation process will be founded. These agreements often explicitly highlight the parties’ willingness and commitment to forging a new positive relationship, founded on mutual respect, understanding, participation, accountability, and balancing of interests. While it may be useful for private sector project proponents to undertake a similar exercise, the history of Indigenous peoples in Canada and their nation-to-nation relationships with the Crown provides governments, depending on the context, with a useful role to play in laying the foundation for significant consultation and accommodation exercises, depending on the context.

107. Governments should also do more to set expectations regarding the appropriate form of consultation in a given context and to determine when the duty has been met. We would encourage Canadian governments to provide context-specific advice or guidance in individual consultation processes to avoid significant ambiguity for project proponents and Indigenous peoples alike.

108. As discussed, the federal, provincial and territorial governments have developed differing policies in respect of the duty to consult and accommodate. Ideally, these governments would negotiate a joint consultation and accommodation policy to guide private sector partners and Indigenous peoples alike in approaching the consultation process. This does not mean that all consultation and accommodation policies must be uniform; they will vary by necessity in response to local context, the Indigenous peoples involved, the applicable treaties (if any), the particular rights an Indigenous people holds, and other factors. However, the lack of consultation policies in some jurisdictions, and the practical guidance provided by certain others, demonstrates that more could be done to ensure that these policies emanate from a common framework and provide the guidance necessary to effectively facilitate interests-based consultation. While it may be aspirational, the federal government’s stated commitment to implement the Declaration in Canada could include an effort to develop such a framework with the provinces and territories.

109. Finally, governments have played and continue to play a foundational role in resolving outstanding Aboriginal claims to land and other rights. Comprehensive land claims agreements, which are also called modern treaties, are government-to-government agreements generally entered into in circumstances where Aboriginal land and resource rights have not been addressed by previous treaties or any other legal means. These treaties typically recognize and define the Aboriginal land and resource rights of the Aboriginal signatory, and are intended to meaningfully improve the social, cultural, political and economic wellbeing of the Aboriginal people concerned. While the signatories to these treaties are Aboriginal, federal and provincial or territorial governments and their terms are typically lengthy and complex, their goal of creating long-term relationships built on, among other things, mutual respect, the recognition of Aboriginal rights and the facilitation of partnership is one to which business and Aboriginal peoples should aspire.

110. Modern treaties address a range of issues, including ownership, use and management of lands, waters and natural resources, harvesting of fish and wildlife, environmental protection and assessment, economic development, employment, government contracting, capital transfers, royalties from resource development, impact benefit agreements, parks and conservation areas, social and cultural enhancement, and self-government and public procurement arrangements. The treaties, once ratified, become constitutionally recognized and protected, and their provisions are intended to provide a mutual foundation for the beneficial and sustainable development and use of Indigenous peoples’ traditional lands and resources.

111. Although businesses are not signatories to these agreements, provisions in these agreements have provided an effective foundation to support relationships between businesses and Indigenous communities, which have, in a number of cases, generated substantial economic benefits for all parties. Examples of modern treaties include the James Bay and Northern Quebec Agreement, the Nisga’a Final Agreement, the Inuvialuit Final Agreement, the Gwich’in Comprehensive Land Claim Agreement, the Nunavut Land Claims Agreement, and the Yukon First Nations Final Agreements.

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133 We note that many project proponents are either First Nations or are partnerships involving First Nations or Indigenous entities.

134 Report of the Special Rapporteur, HRC (2009), supra note 35 at para. 51.

135 Ibid. at para. 53.

136 Report of the Special Rapporteur, HRC (2013), supra note 40 at para. 73.

137 Ibid.

138 Ibid. at para. 76; See e.g. Boreal Leadership Council, “Free, Prior, and Informed Consent in Canada” (September 2012), online: Boreal Leadership Council ; Truth and Reconciliation Commission, supra note 4 at 305-306.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

For permission to republish this or any other publication, contact Janelle Weed.

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