Working Effectively with Indigenous Peoples ©

“The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1)  of the Constitution Act, 1982 .”  [1]

For Aboriginal Peoples, federal and provincial governments, and resource development proponents, in terms of constitutionally protected Aboriginal rights, the “Crown’s duty to consult Aboriginal Peoples” is considered by many to be a primary foundational legal doctrine. The duty to consult opened the door for Aboriginal Peoples to utilize the courts to implement, exercise, and protect their rights; it provides the framework for Crown conduct in relation to consulting and accommodating Aboriginal and treaty rights; and, it is the basic ingredient for building reconciliation between the Crown and Aboriginal Peoples.

“The doctrine of Aboriginal rights exists… because of one simple fact: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.  It is this fact, and this fact above all others, which separates Aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal status.” – Chief Justice Lamer in R. v. Van der Peet, para 30.

Do First Nation members hold Aboriginal and treaty rights individually or collectively? Or, put more simply do the interests of individuals trump those of the collective or vice versa? There’s a situation unfolding just outside Ottawa that highlights this question.

Consultation with First Nations is a key issue for First Nations, governments (federal, provincial, and local), and the corporate sector (project proponents). The complexity and importance of consultation with First Nations is supported by interpretation of law by Canadian courts (see below) as well as by international institutions.

Lyle Viereck recently launched a private consulting firm Lyle Viereck Consulting Services Inc. As the former Director of Aboriginal Relations and Negotiations for BC Hydro and a Chief Negotiator with the Province of BC, he has a depth of negotiating experience. He also has a unique perspective on reconciliation as part of First Nation negotiation that we were eager to learn more about. Lyle kindly took some time to share his invaluable insight.

Lyle Viereck was born and raised in Prince Rupert in northern BC. His family heritage includes Creek Indians from Oklahoma, American black slaves, Irish and German. As a result of this very diverse background Lyle grew up fighting for equality and against racism and was influenced by his family forming labour and credit unions.

Consultation with First Nations is a necessary part of doing business on First Nation treaty or traditional land. Most levels of government and business leaders have accepted that consultation with First Nations is a legal, necessary and important aspect of doing business with First Nations.

Some First Nations have developed guidelines and protocols for consultation. Some provinces have developed “toolkits” for consultation. What there isn’t is a template for consultation – each Nation and each project requires a consultation process tailored to the situation.

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.

Things have definitely changed when it comes to First Nation Community Engagement. The Tsilhqot’indecision has moved the bar much higher in terms of legal requirements and will definitely require governments to beef up and strengthen their duty to consult requirements and policies.

On November 27, 2014, we were very honoured to have Karey Brooks and Jeff Langlois of JFK Law Corporation partake in a webinar on the recent Tsilhqot'in and Grassy Narrows court cases. We've had lots of great feedback from those who sat in on the webinar.