Summary

On March 25, 2011, the Government of Canada released revised Guidelines to federal officials for consulting and accommodating with Aboriginal peoples (the Guidelines). The Guidelines cover how and when to consult and seek to accommodate, and were developed following the Supreme Court of Canada decisions in Haida Nation,[1] Taku River[2] and Mikisew.[3]

The Guidelines were initially issued in interim form in 2008. Civil servants across Canada were trained in the consultation process based on these interim guidelines. The Guidelines were then revised in response to feedback from Aboriginal groups, provincial and territorial governments, industry, and federal civil servants.

The revisions add substantial discussion of guiding principles for the consultation and accommodation process that was not present in the interim guidelines. These guiding principles inform much of the new discussion on how to perform specific steps in the consultation and accommodation process.

The guiding principles have given much needed context and content to the consultation steps described in the Guidelines. With this addition, the policy comes as close as any policy in Canada to mirroring what we at Fasken Martineau DuMoulin LLP have called the 5 Stages of Consultation (the Guidelines do it in four Phases) outlined by the Supreme Court of Canada in their series of cases on aboriginal consultation.

The revised guidelines are divided into two main parts: the Guiding Principles and the Step-by-Step Guide.

Guiding Principles

As an overview of the Crown's duty to consult, the initial section of the Guidelines includes a list of eight guiding principles to inform the various stages of the consultation and accommodation process:

  1. Canada will respect potential and established treaty rights by consulting with Aboriginal groups whose rights or related interests may be adversely impacted by Crown conduct.
  2. Canada will assess how proposed activities will impact potential and established treaty rights and identify when to consult and will seek to consult early in the decision making process.
  3. Early consultation will assist the Canada to identify Aboriginal concerns and minimize adverse impacts, and assess and implement mechanisms to address related interests, where appropriate.
  4. Consultation and accommodation will be carried out in way that balances Aboriginal interests with other societal interests, relationships and positive outcomes for all partners.  A meaningful consultation process should be: timely, efficient and responsive; transparent and predictable; accessible, reasonable, flexible and fair; founded in the principles of good faith, respect and reciprocal responsibility; respectful of the uniqueness of First Nation, Métis and Inuit communities; and include accommodation where appropriate.
  5. Consultation is a Crown responsibility flowing from government activities; Canada will ensure that there is a lead federal agency or department for consultation; should a department be taken outside their mandate because of the consultation process, there will be mechanisms in place to address this.
  6. Canada will use and rely on, where appropriate, existing consultation mechanisms, processes and expertise, such as environmental assessment and regulatory approval processes in which Aboriginal consultation will be integrated, to coordinate decision making and will assess if additional consultation activities may be necessary. The use of Boards (such as the NEB) and their processes will depend on the nature of their involvement in the process and their jurisdiction to deal with issues of law and constitutional issues.
  7. Canada will coordinate consultation and accommodation activities with its partners (e.g. Aboriginal groups, provinces, territories and industry). While the Crown cannot delegate its obligation, the Canada will, where appropriate, use consultation processes and accommodation measures carried out by its partners to assist it in meeting its commitments and responsibilities.
  8. Canada will carry out its activities and related consultation processes in accordance with its commitments and processes involving Aboriginal groups. Canada will seek out opportunities to develop and maintain a meaningful dialogue with Aboriginal groups in support of building relationships with its partners.

The Guidelines also advise departments to utilize available resources and partnerships. This includes, where applicable, using existing federal processes, integrating consultation with environmental assessments, and seeking assistance from the Government of Canada's Major Projects Management Office and Northern Projects Management Office. The Guidelines encourage departments to look at whether or not third parties, such as industry, are in a position to consult for the Crown, keeping in mind that the ultimate duty to consult cannot be delegated to a third party.

The Guidelines also reveal that officials from federal departments and agencies can gather information on Aboriginal and Treaty rights assertions in their proposed activity area by accessing specialized resources, called "The Consultation Information Service", which includes the Aboriginal and Treaty Rights Information System at INAC (this service provides a single point of access to information on Aboriginal and Treaty rights assertions held by INAC). The Consultation Information Service does not appear to be open to those outside of the Federal family. This is unfortunate for two reasons: it would be a useful tool to assist project proponents in undertaking consultation; and it would be useful for Canada to have First Nations able to comment on the quality and accuracy of the information in the system.

Step by Step Guide to Consultation and Accommodation

These steps are contained within four phases:

Phase One: Pre-Consultation Analysis - describes the necessary steps to prepare for the consultation. This phase contains seven steps:

Step 1:   Describe and map out the proposed Crown conduct.

Step 2:   Identify potential adverse impacts of Crown conduct.

Step 3:   Identify which Aboriginal groups are in the area of the proposed Crown conduct and ascertain their respective potential or established Aboriginal or Treaty rights and related interests.

Step 4:   Make an initial determination as to whether there is a duty to consult.

Step 5:   Through analysis of strength of claim and potential for impact, assess the scope of the duty to consult and, where appropriate, accommodate.

Step 6:   Design the form and content of the consultation process.

Step 7:   Ensure that a records management and filing system is in place.

Phase Two: Crown Consultation Process - is where consultation begins. This phase contains four steps:

Step 1:   Implement the consultation process.

Step 2:   Document, catalogue and store all Crown consultation meeting records and other correspondence. 

Step 3:   Develop and maintain an issues management tracking table.

Step 4:   Adjust the consultation and accommodation process as necessary. 

Phase Three: Accommodation - emphasizes that accommodation must be considered as a possible outcome of consultation for the consultation to be meaningful, and should be aimed at reducing or eliminating the adverse impacts of the Crown conduct. Considering whether or not accommodation contains the following four steps:

Step 1:   Gather and analyze information supporting the basis for accommodation.

Step 2:   Identify possible accommodation measures and options.

Step 3:   Select appropriate accommodation options.

Step 4:   Communicate and document selected accommodation measures.

Phase Four: Implementation, Monitoring and Follow-Up - involves implementing the accommodation measures and ensuring their effectiveness. This final phase includes three steps:

Step 1:   Communicate and implement the decision(s). 

Step 2:   Monitor and follow-up.

Step 3:   Evaluate the consultation process.

Conclusions

There are a number of interesting additions to the Federal Consultation Policy in this final iteration that provide potential solutions for some of the major practical issues that have plagued the advancement of consultation in the Federal sphere. There is recognition, for instance, that:

(a)  a lead federal agency should be appointed (even where there is no obvious choice);

(b) the limited mandates of departments must be addressed in order to meet consultation obligations (it being an insufficient answer to reasonable consultation demands, to state "we don't have the mandate to deal with that"); and

(c) consultation by Federal bodies should be integrated with already existing processes like environmental assessment and regulatory approvals.

Once these are implemented, it will go a long way to making consultation more practical on the ground.

Unlike some other Provincial policies, although the Federal Consultation Policy allows for the possibility of taking advantage of consultation done by other levels of government or industry, it does not attempt to download the consultation obligation onto project proponents, recognizing that "the ultimate duty to consult cannot be delegated to a third party". Canada recognizes that in the end the responsibility for consultation is on the Crown, but will take advantage of consultation done by industry, other levels of government and through regulatory boards (such as the NEB) and other regulatory processes (such as environmental assessments).

Also noteworthy is the inclusion of the nuance that consultation and seeking accommodation must be understood in a way that "balances Aboriginal interest with other societal interests, relationships and positive outcomes for all partners."