7 Things to Do Before Consulting with First Nations

February 18, 2015

Strategies for consulting with First Nations are as varied as the histories, cultures, traditions and world views of the over 600 First Nation communities in Canada themselves. There isn't a "one size fits all" template because each community requires different consultation processes, some communities will have their own policies or templates for consultation, and each provincial and territorial jurisdiction has its own regulations. But, there are steps to take before you engage with a First Nation community that are common for all effective consultation processes.

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1. Have a working knowledge of Aboriginal Rights & Title
Section 35 of the Canadian Constitution Act 1982 affirmed that Aboriginal rights such as hunting, fishing and trapping, and self-governance, are inherent rights that are rooted in the Aboriginal use and occupancy of traditional territories prior to British sovereignty in Canada. The Constitutional protection of these rights includes Aboriginal title, which is:

  • “A right to exclusive use and occupation of lands
  • Has an inescapable economic component that requires fair compensation
  • Includes a right to choose to what use the land can be put “[1]
The Delgamuuk and Gisdaway judgment provided this comprehensive Supreme Court description of Aboriginal title
“Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title. (at para 117) What aboriginal title confers in the right to the land itself. (at para 138) [A]boriginal title encompasses the right to exclusive use and occupation of land; second, aboriginal title encompasses use and occupation of land; second, aboriginal title encompasses the right to choose to what uses land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of aboriginal people; and third, the lands held pursuant to aboriginal title have an inescapable economic component.” (at para. 166, emphasis in original) [2]
 

2. Have a working knowledge of the legal definition of Aboriginal Consultation
The Crown has a legal duty to engage in meaningful consultation whenever it has reason to believe that its policies or actions, directly or indirectly, might infringe upon actual or claimed Aboriginal interests, rights, or title. As the Supreme Court of Canada said in the 2004 Haida ruling:

"The nature and scope of the duty of consultation will vary with the circumstances...At all stages, good faith on both sides is required. The common thread on the Crown's part must be "the intention of substantially addressing [Aboriginal] concerns" as they are raised through a meaningful process of consultation...Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations...The fact that third parties [industry] are under no duty to consult or accommodate Aboriginal concerns does not mean that they can never be liable to Aboriginal Peoples. If they act negligently in circumstances where they owe Aboriginal Peoples a duty of care, or if they breach contracts with Aboriginal Peoples or deal with them dishonestly, they may be held legally liable. But they cannot be held liable for failing to discharge the Crown's duty to consult." [3]

3. Have a working understanding of what Free, Prior and Informed Consent means
Indigenous Peoples are recognized by international law and institutions as distinct, self determining
peoples with inherent collective rights. They claim special rights, which include the right to free, prior and informed consent (FPIC) and the right of self determination. These rights and principles are reflected in international human rights law.  In Canada you will find some First Nations who are insistant on using Free Prior and Informed consent as the standard for consultation.  Note the Federal Government will have issues with this.  

4. Know who you will be consulting with:
Identify which First Nations have claims to the land you are interested in working on. Develop a comprehensive understanding of the communities that includes:

  • The history of each community
  • The traditional usage of the land by each community
  • The traditions and culture of each community
  • The view of each community towards resource development
  • What interactions the communities have had in the past with resource developers
  • Existing land use planning policies
  • The priorities or major areas of interest or concern of each community in regards to resource development

By the way, did you know there was a difference between consultation and engagement? Here's a short article that explains the difference.

5. Develop an in-house protocol for consultation and or engagement. Such a protocol could include, but not be limited to:

  • Decision making process
  • Consultation can be a costly and time intensive process - ensure the resources are available before you start
  • Staff responsibilities
  • Reporting structure
  • Define rules or codes of conduct for consultation
  • Consultation log 
  • Aboriginal awareness training for everyone who will be engaging with the community(s)

6. Develop an in-house communications strategy
Consistent, transparent, ongoing communications during the consultation process are a necessity. Identify the spokespeople for the company – they and only they should be involved in the communicating news to the community. It is advisable to limit the number of people who are speaking for the company. Also, if there is a turn over of anyone in the communications team, ensure their replacement is brought up to speed before they approach the community. It is very tiresome for over worked community staff to have to deal with a new face who isn't knowledgeable about the community - it's not their job to educate your people. Your communications plan should include the intent to regularly attend community meetings to provide relevant company news. Consider a publishing a newsletter that can be posted in the band(s) offices.

7. Develop a transparent external communication plan
If your organization is committed to respectful and meaningful consultation and or engagement, then they need to be able to demonstrate that commitment to the community(s). Have a communications strategy ready to share in the initial meetings that includes how often you will be providing project information (the good and the bad – almost all projects hit snags and your readiness to keep the communities abreast of developments is a show of respect and confidence in your relationship and your project.

[1] Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010

[2] ibid

[3] Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73, Paragraphs 40-56

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