By Krista Robertson, Woodward & Company, November 7, 2007
Citation: Robertson, Krista, 2007. "Strategies For Consultation With
Limited Capacity". Vancouver: Ecotrust Canada & Aboriginal Mapping
Network. November 7, 2007. Available online at the Aboriginal Mapping
Network web site: http://www.nativemaps.org/?q=node/2906
Introduction
A common experience of First Nations engaging with government and
private companies about resource use decisions is a lack of adequate
human and financial resources to fully participate. This is a serious
concern because First Nations have a strong interest in being able to
be adequately involved in consultation. Information that comes to
light in the consultation process has important outcomes with respect
to the government's legal obligations to accommodate a First Nation's
Aboriginal rights.
It has been less than a decade since the courts have begun to strongly
enforce the government's legal duty to consult and accommodate.
Although this enforcement is a positive development in the law, the
reality is that within a short period of time, First Nations have
experienced a significant increase in demands placed on their land and
resource departments and their governments to process a very high
volume of resource use 'referrals'.[1] Hopefully, First Nations'
capacity to meaningfully participate will continue to develop to meet
to this increased demand. Ideally, high-level government policy reform
and funding programs, as well as First Nations' economic growth and
development through fair resource benefit sharing, will aid in the
process. However, there currently remains a problematic gap between
the demands on First Nations to participate in consultation and
accommodation processes to keep pace with development, and the limited
resources available to do so. This section of the toolkit does not
provide a solution, but some strategies that may help to address this
ongoing problem.
1. Make a Preliminary Response Requesting a Budget to Support
Consultations
Before responding to the proposed decision in a substantial way, a
First Nation might make a preliminary written response to the initial
referral, expressing a wish to participate and setting out the costs of
participating, with a request that the government and/or proponent
contribute to the costs. The letter may state, where applicable, that
the First Nation has rights that may be impacted by the proposal, and
that it has insufficient resources to adequately respond. Funding
support is more likely to be provided by government and private parties
where the costs are clearly defined. For example, the letter might set
out: standard costs for travel if meetings take place outside the
community, meeting room rates if the meetings take place in the
community, hourly rates for land and resource department staff,
cultural advisors, legal advisors, and costs of community meetings.
Some First Nations have a General Consultation Policy that can be
attached to an initial response letter setting out such details and
other expectations for the process, such as a communication protocols.
If the government and/or the company seeking approvals are willing to
cover the costs of consultations, but require the First Nation to enter
into a contribution agreement to receive the funds, the agreement
should make it clear that acceptance of money does not indicate support
for the project. The purpose of a consultation funding contribution is
to enable negotiation, and should not in any way pre-determine
outcomes.
2. A First Nation Should Not Refuse to Participate if Funding is Not
Provided
In several cases, the courts have recognized participation funding for
First Nations as one factor in determining that the government has met
its duty to consult. However, no court has gone so far as to declare
that the government's common law duty to consult includes a positive
obligation to provide First Nations with participation funding.[2]
Further, the courts have generally held that consultation is a 'two way
street' and that First Nations have a responsibility to participate in
the process. Therefore, a First Nation should be very cautious about
making general declarations that it will not participate in
consultations without funding, as this may compromise its legal
position. However, if capacity is an issue, First Nations should
consider making it clear in writing that without proper funding, the
ability to meaningfully engage in the process will be seriously
compromised, which may result in an unjustified infringement of
Aboriginal rights. This will be important evidence if a First Nation
seeks court intervention in a case where a consultation process has
been seriously compromised by a lack of resources.
3. Refer the Government to Information that Has Already Been Provided
in Previous Consultations or is Publicly Available
A First Nation may not need to provide the government with general
information about its Aboriginal rights for every referral. For
example, if a First Nation is engaged in treaty negotiations, it may
point to statements of intent and other information previously provided
to the government and state that the government is aware, or should be
aware, of the First Nation's rights. If a First Nation has provided
traditional use studies, territorial maps, statements from elders or
other information in other consultation processes with the government,
it may be able to refer to these to avoid the time and expense of
having to reproduce the same documents for a similar referral.
Further, a First Nation should strive to hold the government
accountable to inform itself about the potential impacts of a decision.
General evidence of a First Nation's rights may already be publicly
available, such as historical documents, ethnographies, and
archaeological reports. In responding to a referral, a First Nation
may first ask the government to identify what research it has done to
assess whether or not a First Nation's rights may be impacted. This
does not replace the First Nation's obligation to provide more specific
information where required, but it can save precious resources.
4. If New Information is Required, Put the Ball in the Government's
Court
Wherever possible, a First Nation should put the onus on the government
to provide required information to assess the impact of the proposal on
its Aboriginal rights. Naturally, some information will be known only
by the First Nation; in such cases, the onus is on the First Nation to
bring it forward. It can be a matter of dispute whether the First
Nation has the onus to demonstrate that the right would be infringed by
the proposed activity, or whether the onus is on the government and/or
proponent to demonstrate that activity will not have an adverse effect.
Often, the matter requires detailed study and scientific or other
expertise. If a First Nation does not have the resources to carry out
this assessment, it should clearly communicate its concerns and assert
that the government has an obligation in this regard. For example, it
may state that it has fisheries interests in or near a proposed project
area, and request an assessment by a professional biologist on how the
project might impact the fishery. A First Nation should ensure that
all requests for studies or other information are recorded, and insist
on having a say in who does the study and how it is carried out, to
ensure that the research is independent and properly thorough. A First
Nation will be in better legal position if it makes reasonable, direct
requests for the information required to assess potential impacts,
rather than simply stating it doesn't have capacity to assess the
impacts.
5. Time Extensions May Be Required
Referrals from government and companies may state that the First
Nations must respond prior to a specified time, such as forty-five days
from the date of the letter. There is no legal basis for a government
or private party to set a deadline for a First Nation's response time,
unless the First Nation has previously agreed to a timeline. A First
Nation should not hesitate to request more time if required. A simple
letter requesting more time should suffice. Adequate time to respond
cannot be unreasonably denied. However, a First Nation should be
aware that it cannot unreasonably frustrate the consultation process;
therefore, excessive delay could work against a First Nation. This is
particularly true where further investment and approvals for a project
may be advancing. If a First Nation is aware that the project is
advancing in the preliminary stages of consultation, it should put the
government and the proponent on written notice that irreversible
activity should cease pending consultation.
6. Seek Funding and Partnerships with Other Agencies to Boost Capacity
In addition to seeking contribution funding on a referral-by-referral
basis, a First Nation should take steps wherever possible to develop
its general capacity, such as full-time land and resource staff, office
and field equipment and data. Annual government funding programs may
be helpful in this regard. Collaborating with environmental
organizations and other First Nations to share information and
resources on a general or a project-by-project basis can also help a
First Nation to build capacity. In some cases, evidence of such
efforts may be relevant in a judicial review to show that the First
Nation made all efforts to participate in consultations.
7. Try to be Create Efficiencies Wherever Possible
The case studies section of this toolkit offers practical strategies
from a number of First Nations for establishing efficient systems to
process referrals. However, even the best systems can break down due
to sheer overload. If a First Nation becomes aware that a response had
been significantly delayed because it is simply 'buried' by other
referrals and demands, it should communicate as soon as practical with
the government advising of a backlog and an intention to respond at a
later time. If capacity is fundamentally strained, a First Nation may
have to consider prioritizing responses to proposals that may have
significant impacts over proposals that are unlikely to have an impact.
In these circumstances, if possible, a First Nation might consider
sending a short letter stating that a lack of response should not be
deemed to be consent to any impacts on Aboriginal rights. The letter
might also request notice of any developments or changes in the
proposal, so at least the project can be monitored.
Conclusion
It is difficult to reconcile a First Nation's right to meaningful
participation in consultations about land and resource use with the
fact that many First Nations lack enough resources to do so. Firm
recognition by the courts of the government's legal duty to consult is
a positive legal development to enhance protection of Aboriginal
rights, but the volume, pace, and complexity of consultation processes
First Nations are expected to participate in may come as yet another
burden on a First Nation's administration and government. As all
parties adjust to the new reality in that consultation is required for
virtually every decision that may have an impact on Aboriginal rights,
the situation will hopefully improve. In cases where a lack of
resources is a barrier to adequate participation, a First Nation should
document the problem so both the government and the courts can be made
aware of it.
[1] Referral is a common term used to describe a document from a
government department or a private company notifying a First Nation of
a proposed decision and requesting information from the First Nation
about any potential impacts of the decision on Aboriginal rights.
[2] In some circumstances, legislation requires the government to
provide funding for participation costs, which may be enforced by the
courts.
