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Let’s Stop Blaming The Duty To Consult

A new era for infrastructure development and engagement with Indigenous communities 

As published in the Financial Post, November 28, 2016

The legal duty to consult Indigenous peoples is all about reconciliation. Yet, in practice it has become a source of conflict.

It is frequently said that the “duty to consult” is unclear, hard to define, tough to know when it’s been met, and is the reason for the regulatory morass we see with major project and infrastructure development in Canada.

In fact, the law is pretty clear and the test is not rocket science. It was spelled out by the Supreme Court of Canada 12 years ago in Haida Nation v. BC and gives clear responsibility to governments to make tough decisions to balance constitutionally protected Aboriginal rights and non-Aboriginal interests.

The main challenge with consultation is not lack of clarity in the law. It is the lack of clarity and consistency of governments — sometimes failing to meaningfully consider Indigenous interests and sometimes letting the process run off track into “do loops” of more consultation than the law requires.

This may be because some officials don’t truly understand the duty to consult.  It may be because they are afraid to make difficult decisions that will upset proponents or First Nations. It may be because they are inherently cautious and feel that an ever-more consultation process can only help build a solid “record”.  Or it may be because if they keep a project in a regulatory pressure cooker long enough the proponent may eventually do whatever it takes to find peace with Aboriginal people and then government’s job gets a lot easier.  None of these are good reasons, but they are (to varying degrees) endemic to government departments across the land.

There are two strategies that can be used to mitigate these risks.

The first strategy, which is now widely accepted (though often imperfectly implemented) is for proponents to engage early and directly with Indigenous  groups, and to explore meaningful opportunities for involvement by First Nation, Métis and Inuit communities in project planning, construction, operations and even ownership.  This is typically a precondition to success, but not a guarantee of it.

The second strategy, which gets far less attention, is to monitor the regulator.  It involves keeping very close tabs on the process, engaging as necessary to ensure government is meeting its duties, cooperatively assisting where possible and pushing back hard when necessary.

Why does keeping government on track matter so much? Because it offers the best way to ensure a fair and level playing field for honest negotiations with Aboriginal groups about economic opportunities and benefit sharing. Because it maximizes the chances of genuine partnerships.  Because it minimizes the risk of legal challenge. And because it separates proper environmental permitting from the discussion of economic benefits (as should be the case).

So while people continue to talk about the elusive “social licence”, and while governments continue to speak to infrastructure and resource development goals they are challenged to deliver, we believe this is the key to success for all concerned.

It may sound basic, but if governments are held to doing what the Courts have said they must, there is a path to mutual success.  And it is one that avoids the endless delays that are neither required nor endorsed by our Courts.  As then Supreme Court of Canada Justice Ian Binnie said in Beckman v. Little Salmon/Carmacks First Nation, “Somebody has to bring consultation to an end and to weigh up the respective interests.”

Of course governments might prefer if companies and Indigenous groups could always find consensus between themselves.  Who wouldn’t?   But that is simply not realistic in all cases.  Democracy does not mean unanimity.  And Aboriginal rights, while important and constitutionally protected, must also be balanced with non-Aboriginal interests.

So the truly successful proponent will be one who understands the need to work hard to build bridges with Indigenous peoples, to engage early, to listen genuinely and to explore opportunities for mutual gain.  But that is not enough.  They must also understand how government and the officials within it think and act, what motivates them and how to ensure that they fulfill the duty to consult in a timely and fair manner (in the face of powerful competing tensions).  That requires more than knowing the law and permitting processes. It requires a deep understanding of how government works in real life, all the way from Minister to front line permitting officer. Unfortunately none of that can be found in the decisions of the Supreme Court of Canada.

Tim Murphy and Robin Junger are lawyers and members of the McMillan Vantage Policy Group, a public affairs firm.  Mr. Murphy served as Chief of Staff to Prime Minister Paul Martin and Mr. Junger was previously Deputy Minister of Energy and a Chief Treaty Negotiator for the Province of BC.  

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