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Meaningful Consultation

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Introduction:

 

Canadian courts have established that Meaningful Consultation is an Aboriginal right in Canada guaranteed by Section 35 of the Constitution Act (1982)64 65 66 67 68. The goal of Meaningful Consultation is the reconciliation of the pre-existence of Aboriginal societies, Aboriginal rights, with the sovereignty of the Crown60 63. The Report of the Royal Commission on Aboriginal Peoples (1996) set out four principles to guide the process of renewing the relationship between non-Aboriginal and Aboriginal rights. They are:

 

1. Mutual recognition;
2. Mutual respect;
3. Sharing; and,
4. Mutual responsibility69.

 

1.  Criteria for Meaningful Consultation:

 

Meaningful Consultation is not about turning the clock back for Aboriginal Peoples, it is about bringing Canada’s relationship with Aboriginal Peoples and their rights forward to where they should have been if forced assimilation had never occurred.

 

 

Meaningful Consultation provides a process through which:

• Aboriginal rights can be accommodated;
• A new legal basis for Canada’s relationship with Aboriginal Peoples can be formulated;
• Reconciliation can occur between Canada and its Aboriginal Peoples; and,
• An Aboriginal culture database can be prepared for Canada;

 

 

Meaningful consultation must be defined by both objective-based criteria and functional criteria. A Meaningful Consultation process that affirms the right to consultation, the goal for reconciliation and the Royal Commission’s guiding principles will have the ability to provide:

 

• Canada with a deep understanding of Aboriginal culture and rights;
• Definition for Aboriginal law and regulation;
• Framework definition for culture-based Aboriginal infrastructure;
• Definition for modern culture-based roles for Aboriginal Peoples in Canada;
• Definition for new roles for federal, provincial and territorial governments with Aboriginal Peoples;
• Definition for framework on shared land and resource management;
• Definition for a shared destiny in Canada through a legislative base;
• Reconciliation of Aboriginal infrastructure with non-Aboriginal infrastructure;
• Reconciliation of Aboriginal and treaty rights with non-Aboriginal rights; and,
• Respectful partnerships.

 

 

These above objective-based criteria for Meaningful Consultation provide a platform through which the success of a specific Meaningful Consultation process can be measured. Functional criteria provide the working framework for the process. Functional criteria for Meaningful Consultation include that it:

 

• Is firmly founded in respect and sharing;
• Can accommodate the Aboriginal right to consultation;
• Is cultural in nature and able to accommodate the culture of different Aboriginal Peoples;
• Can be adapted to provide consultation and accommodation for any Aboriginal right or issue;
• Respects Aboriginal law, Canadian law, and the United Nations definition of Meaningful Consultation;
• Can define and attain an appropriate depth for any needed Meaningful Consultation process.
• Is comprised of consultation and accommodation components;
• Can provide both Aboriginal Nation and nation-to-nation components;
• Can identify and remove EFABs;
• Can identify and create legislation needed to accommodate Aboriginal rights;
• Can identify and create services through which new Aboriginal and non-Aboriginal roles can function;
• Has clear measures of success; and,
• Is transparent and accountable.

 

 

The Canadian federal government has rudimentary guidelines for Aboriginal consultation70. These guidelines do not meet objective-based or functional criteria standards for Meaningful Consultation. This was recently evidenced with INAC’s Aboriginal engagement process on economic development71 and its engagement for drinking water and wastewater management72.  These engagement processes did not meet criteria for Meaningful Consultation and they fell well short of Aboriginal expectations for consultation of their rights to land and resource management. INAC’s engagement processes also failed to respect Canada’s Rule of Law. Aboriginal rights fell victim to EFABs because one or both of the engagements broke Common Law when they:

• Used a public consultation process;73
• Failed to reconcile traditional Aboriginal law and regulation on land and resource management with the sovereignty of the Crown;74
• Did not provide deep consultation on rights of high significance to Aboriginal Peoples or when the risk of non-compensable damage was high;75
• Failed to consult Canada’s individual Aboriginal Nations on matters affecting Aboriginal land and resources;76
• Failed to provide a consultation process that recognized distinct features of the distinct Aboriginal Peoples engaged in consultation;77
• Failed to recognize collective and communal Aboriginal rights and provide required community consultations;78
• Did not meet the Crown’s duty to consult when meetings occurred with Aboriginal leaders in lieu of community and nation consultations;79 and,
• Provided legislation or regulations that make no attempt to accommodate constitutionally enshrined Aboriginal rights12 13.

 

 

a.  Defined by Aboriginal Law:

 

Meaningful Consultation can not be defined for Aboriginal Peoples, it must be defined by them. Each nation will have its own traditional law and customs to define the cultural nature and measures of success for Meaningful Consultation. However, the starting place is the same for the definition of Meaningful Consultation in Aboriginal law in all Aboriginal Nations, it starts with Elders.

 

The Royal Commission on Aboriginal Peoples spoke to many Aboriginal leaders and Elders through an extensive, recorded process. From that testimony, Commissioners were clearly shown the role of Elders as national guides and keepers of traditional knowledge80. They carry oral traditional law for the nation and have a lead role in re-establishing culturally appropriate frameworks for infrastructure. Meaningful Consultation on any and all Aboriginal rights and issues starts in every Aboriginal Nation with Elders.

 

The Report of the Royal Commission on Aboriginal Peoples’ recommendation 4.3.1 states 81,

“Aboriginal, federal, provincial and territorial governments acknowledge the essential role of Elders and the traditional knowledge that they have to contribute in rebuilding Aboriginal nations and reconstructing institutions to support Aboriginal self-determination and well-being. This acknowledgement should be expressed in practice by:

 

1. Involving Elders in conceptualizing, planning and monitoring nation-building activities and institutional development;
2. Ensuring that the knowledge of both male and female Elders, as appropriate, is engaged in such activities;
3. Compensating Elders in a manner that conforms to cultural practices and recognizes their expertise and contribution;
4. Supporting gatherings and networks of Elders to share knowledge and experience with each other and to explore applications of traditional knowledge to contemporary issues; and
5. Modifying regulations in non-Aboriginal institutions that have the effect of excluding the participation of Elders on the basis of age.”

 

 

The commission concluded that Aboriginal Elders, First Nation, Métis and Inuit, are the source and teachers of the North American intellectual tradition82.

 

The Canadian federal government’s guidelines for Aboriginal consultation70 do not meet the standards set out in the Report of the Royal commission on Aboriginal Peoples for inclusion of Aboriginal Elders; Meaningful Consultation does.

 

b.  Defined by Common Law:

 

The Crown has a duty to consult Aboriginal Peoples64 that arose from the recognition of its fiduciary duty toward Aboriginal Peoples63. The Crown also has a more general duty to consult Aboriginal Peoples arising out of the honour of the Crown66 67 68. The Crown’s duty to provide Meaningful Consultation to Aboriginal Peoples applies to both federal and provincial governments83. The Crown’s duty to meaningfully consult is triggered when the Crown has knowledge of an Aboriginal right or title and considers an action that might adversely affect it84. The major difference between the fiduciary duty and the honour of the Crown is that the honour of the Crown,

“... can be triggered even where the Aboriginal interest is insufficiently specific to require that the Crown act in the Aboriginal group’s best interest (that is, as a fiduciary). In sum, where an Aboriginal group has no fiduciary protection, the honour of the Crown fills in to insure the Crown fulfills the section 35 goal of reconciliation of “the preexistence of Aboriginal societies with the sovereignty of the Crown.85”

 

The nature of Meaningful Consultation is:

 

1. It can not occur if the Crown unilaterally exploits the resource under consultation86; and,
2. It includes both the duty to consult and the duty to accommodate Aboriginal Peoples87.

 

 

The nature of the duty to consult will vary with circumstances76 88 and includes:

 

1. Deep consultation when the Aboriginal right and the potential infringement on the right is of high significance to Aboriginal Peoples; or, the risk of non-compensable damage is high75;  
2. The full consent of an Aboriginal Nation in some cases, particularly with hunting and fishing regulations76;
3. A process which recognizes distinct features of the Aboriginal Peoples engaged in consultation77;
4. Consultation on issues involving Aboriginal and treaty rights 63;
5. The right to be consulted on matters affecting wildlife conservation and natural resource management74;
6. The right to be consulted on matters affecting hunting and fishing rights76 88;
7. Aboriginal Elders as the oral repository for historical knowledge of culture, pre-contact practices, and for the values and morals of their culture to be used in consultation to define Aboriginal rights for pre-contact practices89;
8. Both community and nation consultations for Aboriginal rights that are collective or communal78;
9. Aboriginal rights to hunt and fish as collective rights90;
10. Meetings with Aboriginal leaders do not meet the Crown’s duty to consult in situations of high significance79;
11. The duty to consult cannot be met by giving Aboriginal Peoples a short period of time to respond91;
12. The duty to consult cannot be fulfilled by giving a general internet notice to the public inviting comments91;
13. A public consultation process cannot meet the Crown’s duty to consult73;
14. The Crown is obliged to establish a reasonable consultation process to meet its duty to consult92;
15. A Memorandum of Understanding can be used to define a Meaningful Consultation framework93 but is not itself consultation; and,
16. The Crown cannot meet its duty to consult Aboriginal Peoples when it fails to follow its own process for consultation as set out in its policy for consultation with Aboriginal Peoples94.

 

 

The duty to accommodate:

 

1. First begins when the honour of the Crown demands recognition and accommodation of the distinct feature(s) in Aboriginal society that need to be respected in the consultation process95; and,
2. Ends when the Crown’s effort to fulfill its duty to meaningful Aboriginal consultation is assessed and found to be adequate by the overall offer of accommodation weighed against the potential impact of the infringement on the Aboriginal right under consultation96.

 

 

The nature of the duty to accommodate includes:

 

1. The Crown is not negotiating in good faith and a willingness to accommodate Aboriginal interests when the Crown does not make reasonable concessions97;
2. The provision of technical assistance and funding to carry out the consultation when necessary98;
3. Accommodation before final resolution to avoid irreparable harm to the Aboriginal claim and in situations of high significance to Aboriginal Peoples99;
4. An amendment to Crown policy or practice to reconcile the Aboriginal right under consultation with the sovereignty of the Crown in situations of high significance to Aboriginal Peoples100;
5. Crown legislation and regulations are unreasonable when they make no attempt to accommodate the constitutionally enshrined rights of Aboriginal Peoples12 13; and,
6. The negotiation of a Memorandum of Understanding (MOU) does not provide accommodation of the Aboriginal claim under consultation when conditions negotiated in the MOU process are not realized101.

 

 

The Canadian federal government’s guidelines for Aboriginal consultation70 do not meet the standards set out in the above Rule of Law defined by Common Law; Meaningful Consultation does.

 

c.  Defined by the United Nations:

 

In 2007, the United Nations Committee on the Elimination of Racial Discrimination reviewed Canada’s progress on removing all forms of racial discrimination102. The committee recommended:

 

• Canada consult Aboriginal Peoples on a legislative solution to the discriminatory effects of the Indian Act against Aboriginal women and children;
• Wherever possible, Canada engage in good faith negotiations based on recognition and reconciliation to settle Aboriginal land claims; and,
• Canada engage in effective consultations with Aboriginal communities to develop mechanisms to ensure application of the Canadian Human Rights Act.

 

 

The United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people released recommendations on the duty to consult in July 2009103. Recommendations include:

 

1. States have a duty to consult with Indigenous Peoples through special, differentiated procedures in matters affecting them, with the objective of obtaining their free, prior and informed consent;
2. The duty to consult applies whenever a legislative or administrative decision may affect Indigenous Peoples in ways not felt by the State’s general population, and in such cases the duty applies in regard to those indigenous groups that are particularly affected and in regard to their particular interests;
3. States should develop mechanisms for determining and analysing if, and the extent to which, proposed legislative or administrative measures, including those for natural resource extraction or other development activities, affect Indigenous Peoples’ particular interests, in order to determine the need for special consultation procedures well before the measures are taken;
4. The specific characteristics of the required consultation procedures will vary depending on the nature of the proposed measure, the scope of its impact on Indigenous Peoples, and the nature of the indigenous interests or rights at stake;
5. The objective of the consultation should be to obtain the consent or agreement of the Indigenous Peoples concerned;
6. Consultations should occur early in the stages of the development or planning of the proposed measure, so that Indigenous Peoples may genuinely participate in and influence the decision-making;
7. The principle that indigenous consent should be the objective of consultation does not mean that obtaining consent is an absolute requirement for all situations;
8. States should define into law consultation procedures for particular categories of activities, such as natural resource extraction activities in, or affecting, indigenous territories;
9. Consultation procedures that are included into laws or regulations, as well as ad hoc mechanisms of consultation, should themselves be developed in consultation with Indigenous Peoples;
10. States should make every effort to allow Indigenous Peoples to organize themselves and freely determine their representatives for consultation proceedings, and should provide a climate of respect and support for the authority of those representatives;
11. Indigenous peoples should work, when needed, to clarify and consolidate their representative organizations and structures in order that they may function effectively in relation to consultation procedures;
12. States should develop adequate analyses and impact assessments of proposed legislative or administrative measures, and make them available to the Indigenous Peoples concerned along with all relevant information well in advance of negotiations;
13. States should endeavour to ensure that Indigenous Peoples have adequate technical capacity and financial resources in order to effectively participate in consultations, without using such assistance to leverage or influence indigenous positions in the consultations;
14. Relevant agencies and programmes within the United Nations system, as well as concerned NGOs, should develop ways to provide Indigenous Peoples with access to the technical capacity and financial resources they need to effectively participate in consultations and related negotiations;
15. Even when private companies, as a practical matter, are the ones promoting or carrying out activities, such as natural resource extraction, that affect Indigenous Peoples, States maintain the responsibility to carry out or ensure adequate consultations;
16. Private companies should conform their behaviour at all times to relevant international norms concerning the rights of Indigenous Peoples, including those norms related to consultation;
17. Private companies that operate or seek to operate on or in proximity to indigenous lands should adopt codes of conduct that bind them to respect Indigenous Peoples’ rights in accordance with relevant international instruments, in particular the United Nations Declaration on the Rights of Indigenous Peoples;
18. States should develop specific mechanisms to closely monitor company behaviour to ensure full respect for Indigenous Peoples’ rights, and to ensure that required consultations are fully and adequately employed;
19. States should take measures to improve the mediation capacity of government agencies, in partnership with companies if applicable, to deal with potentially conflicting interests in relation to indigenous land and resources; and,
20. States should work with all stakeholders to implement mechanisms of company monitoring and ensure protection from discrimination and equal opportunities to Indigenous Peoples.

 

 

The Canadian federal government’s guidelines for Aboriginal consultation70 do not meet the standards set out in the United Nations recommendations on the duty to consult; Meaningful Consultation does.

 

2.  Depth of Consultation:

 

Canadian Common Law and United Nations recommendations define a variation to the depth of the Meaningful Consultation process depending on the significance of the issue under consultation. The functional definition to this depth of consultation can be found in the framework of infrastructure.

 

Meaningful consultation literally takes rights and reconciles them with rights, laws with laws, regulations with regulations, services with services and roles with roles (Diagram 6) until programs produced by the infrastructure are reconciled. If one takes the framework of infrastructure and inverts it to reflect the adding on of infrastructure layers, one can see that rights are a deeper layer then laws, which are deeper then regulations on so on up the line. When finished, programs are the most superficial and rights the deepest part of the framework of infrastructure (Diagram 7).

 

The inverted layers of the framework of infrastructure more adequately reflect the ease of accessibility one has to layers within national infrastructure. Programs are the most accessible and therefore the lightest depth of consultation. In fact, since programs are not infrastructure but tools of infrastructure, by nature they require very little formal consultation when all parties act in good faith. As one can see in diagram 8, the deepest depth of consultation is consultation on rights. Canada has done very little work with the reconciliation of Aboriginal rights. Because of this, every Meaningful Consultation will need to start at the deepest level for the Aboriginal right under consultation.

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Last Updated November 24, 2011