Evaluation of Consultation and Accommodation

Legal Duty to Consult

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Indigenous and Treaty rights of Indigenous peoples in Canada. The Supreme Court of Canada has held that the Crown has a legal duty to consult and, where appropriate, accommodate, when it contemplates conduct that may adversely impact potential or established Indigenous or treaty rights. The Supreme Court of Canada has identified that the legal duty to consult flows from the honour of the Crown and plays an important role in furthering the overall objective of reconciliation. Meeting the legal duty to consult requires a reasonable process that demonstrates a genuine effort to understand Indigenous concerns and, where appropriate, a genuine effort to address the Indigenous concerns related to potential adverse impacts on potential or established Section 35 rights.

The legal duty to consult applies when the Crown (federal or provincial/territorial) is planning or carrying out conduct. Some examples include:

• Land transactions such as the disposal or lease of Crown lands;
• Regulatory processes, approvals and permitting by the Crown of third-party projects; and
• Proposed settlement with Indigenous groups where there are overlapping claims of other Indigenous groups (e.g. treaties and additions to reserve).

The duty to consult has been a game changer for many Indigenous groups, particularly for groups geographically well situated in relation to both ongoing and potential resource development projects, by providing them with new opportunities to obtain immediate and tangible economic and other benefits based on asserted, but as yet unproven rights.

The duty to consult has also profoundly heightened provincial and territorial governments' interest in and attention to Section 35 issues, primarily because they are generally the largest owner of lands and resources in a province or territory and have a corresponding large interest in the development and use of those lands and resources.

INAC Consultation and Accommodation Unit

In November 2007, the Government of Canada launched a plan to address the legal duty of federal departments and agencies to consult with Indigenous groups. The Action Plan was designed to ensure that:

• federal officials received consultation guidelines and related training;
• federal officials began monitoring and improving the co-ordination of consultation and accommodation practices across departments;
• a repository of information was created to track the location and nature of potential and established Indigenous and treaty rights; and
• Indigenous groups, provinces, territories and industry groups were engaged in the development of policy on consultation and accommodation.

INAC Consultation and Accommodation Unit (CAU) was established in February 2008 to lead a "whole-of-government" approach to Indigenous consultation and accommodation. The CAU helps federal, provincial and territorial departments and agencies fulfill their duty to consult through the following measures and responsibilities.

Assisting Departments and Agencies in Fulfilling the Duty to Consult

• Providing Government of Canada officials with training and advice on the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult.
• Examining and advising on key policy issues related to the Crown's legal duty to consult, (e.g., Accommodation, Strength of Claim).
• Providing additional training beyond the basic sessions, supporting departments and agencies in developing their own training, and designing information sessions for industry and Indigenous groups.

Consultation Arrangements/Protocols

• Negotiating cooperative arrangements with provinces and territories and Indigenous groups to make consultation processes more efficient and coordinated.
• Enhancing Canada's working relationship with provinces and territories through the development of memorandums of understanding.

Consultation and Accommodation Tools

• The Aboriginal and Treaty Rights Information System (ATRIS) is a web-based information system intended to map out the location of Indigenous communities and display information pertaining to their potential or established Indigenous or Treaty rights.
• The Consultation Information Service is a single window for providing information to federal officials and other interested parties on the location and nature of established and potential Indigenous and treaty rights.
• Contributes to the development of operational guidance and tools in relation to consultation and accommodation (e.g., forms, assessment tools, tracking tables).

The Consultation and Accommodation Unit is comprised of a director and approximately 25 staff members.

Key Stakeholders

The CAU has several partners and stakeholders. An Interdepartmental Team is in place composed of representatives from INAC and the following departments:

• Canadian Northern Economic Development Agency
• Canadian Environmental Assessment Agency
• Canadian Nuclear Safety Commission
• Fisheries and Oceans Canada
• Justice Canada
• National Defence and the Canadian Forces
• Environment Canada
• Natural Resources Canada and their Major Projects Management Office
• Parks Canada
• Public Works and Government Services Canada
• Transport Canada
• Treasury Board of Canada Secretariat
• National Energy Board

Other stakeholders include:

• Other departments on the Auxiliary Interdepartmental Teams^{Footnote 2}
• Provinces/territories
• Indian Bands/Inuit settlements
• Tribal councils
• Indigenous Associations
• Métis organizations/Collectives
• Industry
• Regional federal consultation practitioners

Within INAC, the CAU provides advice and support to sectors; however, sectors are responsible for developing processes for fulfilling the Crown's legal duty to consult obligations, which fall under INAC mandate. Sectors have, in turn, developed specific guidelines, tools, and operational procedures with respect to fulfilling this legal duty. The CAU continues to provide support to INAC sectors to ensure that they are aware of their obligations for the legal duty to consult; helps address issues/concerns and any specific need/requirement on other department policy or program issues; and, provides positions and feedback on policy and litigation issues.

Program Resources

The financial authority associated with Consultation and Accommodation is Contributions for the purpose of consultation and policy development.

Guidelines

Aboriginal Consultations and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (2011) ("the Guidelines"). The CAU updated the Interim Guidelines (2008), in collaboration with other federal departments and agencies, to reflect developments in case law and the experiences engaging with Indigenous organizations and communities, provinces and territories and industry representatives. The Guidelines were developed to provide practical advice and guidance to federal departments and agencies to help officials determine when the duty to consult may arise and how it may be fulfilled. To support consistency across government, the Guidelines set out guiding principles, clarify roles and responsibilities, and provide a step-by-step chronological guide to consultation and accommodation. The Guidelines are in the process of being updated to reflect changing case law and feedback from users based on experience with the 2011 edition.

Co-ordination

Co-ordination at the federal level is important for effective information sharing, reducing duplication, reducing Indigenous consultation fatigue, and supporting a consistent approach by the Crown. The CAU co-ordinates a number of activities related to the legal duty to consult, including for example, collaborating with the Major Projects Management Office at Natural Resources Canada and the Northern Projects Management Office at Canadian Northern Economic Development Agency to facilitate effective, accountable, transparent, timely and predictable federal review of resource development and infrastructure projects.

Another example of the CAU's coordinating activity is its support for the Government of Canada's Consultation and Accommodation Interdepartmental Team. The purpose of the Interdepartmental Team is to provide guidance and direction to federal departments and agencies in supporting the whole-of-government approach to Indigenous consultation and accommodation. The Interdepartmental Team, which has representatives from 14 federal government departments and agencies,^{Footnote 17} serves as a forum to address issues arising from Canada's approach to consultation and accommodation. It is also a forum for information sharing and supports the development of department/agency policies, tools and guidelines. The Interdepartmental Team is chaired by the CAU with oversight from the Major Projects Deputy Minister Committee^{Footnote 18}.

The CAU also co-ordinates the regional consultation coordinators, which play an essential role in building relationships and responding to the concerns of stakeholders, acting as liaison between federal departments, provincial and territorial governments and Indigenous organizations and communities. Regional consultation coordinators also participate in INAC policy development, operational guidance and training for consultation and accommodation. Regional consultation coordinators share issues and challenges in their respective regions and, based on what they hear from stakeholders and provide policy advice by advising on what may or may not work on the ground and ensuring regional-specific issues are considered. In addition, the regional consultation coordinators explore opportunities for joint development of memorandums of understanding and consultation protocols with Indigenous groups and provinces/territories, provide broad consultation advice and find opportunities to encourage collaboration between the federal government and provincial/territorial governments, Indigenous groups and industry.

Several informants noted that CAU support for Indigenous consultation is well-integrated in the regions because the regional consultation coordinators have effectively developed and supported good relationships.

Training and Tools

The Aboriginal and Treaty Rights Information System (ATRIS) is a web-based information system intended to map out the location of Indigenous communities and display information pertaining to their potential or established Indigenous or treaty rights. It is used to help interested parties determine which Indigenous groups they may need to consult about their proposed activities across Canada. Although the first iteration of the ATRIS system was criticised for not fully meeting the needs of client departments, ATRIS has evolved over time based on feedback from users and the CAU's active collection of information from within the Department around consultation and accommodation. Such activities revealed information gaps to be addressed, which emerged as departments began to operationalize their new policies. As further information on Indigenous and treaty rights in Canada became available through consultations with Indigenous communities, court decisions or other means, ATRIS has been updated. INAC has made the system available publicly and actively seeks input from users to improve the system and offers web-training. Despite improvements to date, several key informants stated that ATRIS could be better by providing more information on a timelier basis. For example, the information regarding the Nisga'a Nation is not accurately represented on ATRIS.

The Consultation Information Service of the CAU manages the ATRIS and also serves as a single point of access for departments and agencies to information on Indigenous and treaty rights not housed within ATRIS. The regional consultation coordinators feed into this service by providing up-to-date information to inform the responses the Consultation Information Service prepares for the questions and inquiries it receives.

Training has been provided to over 2,700^{Footnote 19} federal officials, mainly from regulatory departments and agencies across Canada, which has contributed to an increase in awareness and a greater understanding of Canada's consultation and accommodation obligations. The trainingteam developed operational guidance and training material and delivers training to federal officials across regions and departments/agencies – usually tailoring the information to the audience. A one-day introductory session was first developed and, additionally, a two-day enhanced session has been offered since 2012. Topics addressed in training sessions include consultation requirements and associated processes, Indigenous and treaty rights, the latest case law as it relates to the duty to consult and an introduction to the ATRIS and Consultation Information Service. To date, there has been no formal analysis of the feedback forms, however, they are assessed following the session to support ongoing development of training. There were many very positive comments about the quality of the training from key informants.

Information Sharing and Policy Advice

Information about the legal duty to consult is shared in a variety of ways, including, for example, through the regional consultation coordinators, the Inter- and Intradepartmental teams, and the Federal/Provincial/Territorial Working Group on Aboriginal Consultation and Accommodation. Representatives from these groups were positive about the role CAU provides for creating a constructive forum for information sharing and contributing to the dissemination of information. Information about the legal duty to consult is also shared through ATRIS and other online tools such as Hummingbird Collaboration and GCPedia.

The CAU appears to have evolved from its initial proactive approaches to raise awareness of the legal duty to consult and provide guidance for federal officials to a more 'centre of excellence' profile that is sought out for advice and counsel on project-specific issues. The CAU seems to have established itself as a source of good policy guidance, information and operational advice. Feedback on the quality of the CAU staff, while not solicited, was freely offered and very positive.

Key informants noted that the CAU should continue to raise its profile and play a leadership role in assisting federal departments and agencies in fulfilling the Crown's legal duty to consult. This continues to be necessary as it was reported that more could be done to inform federal officials of the tools and support provided by the CAU.

Support to the "Whole-of-Government" approach

The CAU is mandated to support the 'whole of government' approach for major resource projects primarily through ensuring that Crown consultation is integrated into the environmental assessments and project review process. The relevant regulatory authority is responsible for co-ordinating those consultations. Informants stated that the CAU is well-positioned to support the achievement of the level of consistency and co-ordination conceived for a "whole-of-government" approach. The Consultation Information Service has demonstrated its ability to influence government departments and agencies by ensuring that all federal officials receive the same baseline information, in support of the long-term goal of consistency.

The CAU further supports a 'whole-of-government' approach through the partnerships it has established with:

• The Canadian Environmental Assessment Agency is a federal body mandated to provide advice and guidance across government to assist federal authorities in carrying out environmental assessments. The Canadian Environmental Assessment Agency leads the co-ordination between federal/provincial/territorial environmental assessment requirements and administers a participant funding program to facilitate public participation and Indigenous consultation during comprehensive studies and assessments by review panels. The Canadian Environmental Assessment Agency acts as the Crown Consultation Coordinator to integrate the Government of Canada's Indigenous consultation activities into the environmental assessment process to the greatest extent possible. This applies to all environmental assessment for which the Canadian Environmental Assessment Agency is the responsible authority.
• Major Projects Management Office was established in 2007 to improve the efficiency and effectiveness of the federal regulatory review system while ensuring careful consideration of environmental protection, Indigenous consultation obligations, and enhancing the competitiveness of Canada's resource industries. It provides a single point of entry into Canada's regulatory process for major resource projects.
• The Northern Projects Management Office was established to improve the environmental review process for proposed major resource development and infrastructure projects in northern Canada. It co-ordinates federal efforts related to northern regulatory review processes; provides advice and issues management among federal and territorial governments, industry, regulatory and review boards, Indigenous groups and communities; and oversees federal Crown consultations with Indigenous communities related to the environmental process.

The CAU assists federal departments and agencies in fulfilling the Crown's duty to consult by raising awareness regarding the duty to consult, offering various supports and training federal officials on how to consult properly. Ensuring that consultations are effective and consistent is necessary to avoid future questions as to the quality or meaningfulness of the process, thus risking a challenge of the adequacy of the consultation process altogether. INAC is viewed by other government departments as the Department with extensive knowledge of Indigenous communities and is likely best placed to share this expertise with other interested parties. The difficulties of managing a whole-of-government approach through INAC are also widely acknowledged among key informant interviewees.

Indigenous Groups and Representatives

The CAU began engaging with Indigenous communities and organizations, provinces, territories and industry as part of its initial "Action Plan" mandate. A key element in the 2007 Action Plan was to engage with First Nations, Inuit and Métis communities and organizations, provinces and territories and industry to seek their views on a federal policy approach to Indigenous consultation and accommodation. According to INAC's Summary of Input from Aboriginal Communities and Organizations on Consultation and Accommodation, 68 First Nations, Inuit and Métis accepted the Department's invitation to participate in the engagement process, which took place between January 2009 and March 2010. Among the participants were organizations, such as the Assembly of First Nations, National Women Association of Canada, National Aboriginal Friendship Centre, Pauktutiit and a range of Indigenous communities from all provinces and territories. The CAU continues to engage, support and collaborate with each of those groups, often proactively but, more recently, in response to requests for more detailed information.

Over the years, the CAU has met with Indigenous organizations after reaching out to some and in response to other Indigenous organizations who have specifically asked for more information about the duty to consult. One example is the meeting with the Heiltsuk Tribal Council that included a question and answer session to elaborate on the Government's approach. The CAU has also presented to the Assembly of Manitoba Chiefs to highlight the CAU's activities, priorities, challenges and future plans. The regional consultation coordinators meet with Indigenous communities and organizations on a regular basis, given their role in negotiating protocols and formalizing relationships.

Provinces and Territories

Provincial and territorial governments have a significant role to play regarding resources development, Indigenous relationships and the legal duty to consult.^{Footnote 20} Key informants noted that there are inconsistencies and sometimes conflicting interpretations across federal, provincial and territorial approaches. It was suggested by informants that provincial governments need to increase their role within their areas of jurisdiction, (for example, greater provincial involvement in land use planning and preparations for consultations). There appears to be a need to address some of the inconsistencies, perhaps starting with clearly defining the exact roles of the federal and provincial governments and more clarity about the specific responsibilities of each order of government. The CAU does engage with provinces – a number of whom have established dedicated offices for Indigenous consultations – and experience varies by province. British Columbia has had well established consultation practices in place for 20 years, which they were able to share with INAC when the CAU was established. Other provinces have relied on the CAU to assist in the development of their consultation offices – and those participating in the interview process were very appreciative of the expertise offered by the CAU.

The CAU engages with provinces and territories through information sharing and policy work as much of the same issues are tracked by both levels of government. CAU's engagement with provinces and territories varies as the level of information needs varies. The engagement work has resulted in memorandums of understanding being developed between some provinces and the federal government. Memorandums of understanding are agreements between provincial or territorial governments and the federal government that typically address co-ordination mechanisms, communications, information sharing and joint training. Memorandums of understanding are expected to reduce duplication and costs, enhance consistency, and contribute to ongoing collaboration and dialogue.

The Canada-Nova Scotia Memorandum of Understanding was signed in 2012 with additional memorandums of understanding between the Government of Canada and other provinces under development.

Industry

Industry representatives have expressed concerns that projects may be put at risk if Indigenous and treaty rights are not addressed. Industry on the whole has been supportive of consultations with Indigenous groups, particularly as consultations can create a more predictable climate for economic development projects. This support is demonstrated in the multi-million dollar contributions industry makes annually to support consultations and the fact that some companies have been directly engaged in consultations with Indigenous groups for years. Key informant interviews and the literature review suggest additional concerns, such as a perceived lack of harmonization between provinces and the federal government approaches (e.g., timelines, both governments should engage at the beginning of the process, eliminate overlap), a lack of clarity around roles and accountabilities, and guidance on what constitutes adequate consultation. Finally, despite the efforts in gathering and sharing information, it is not always clear to the proponent who the affected community is, and thus, which groups need to be consulted.

The CAU has presented to internal INAC individuals and groups (e.g., Treaty and Aboriginal Government Sector Senior Management, Lands and Economic Development Sector Regional Directors), other government departments/agencies, (e.g., Department of Canadian Heritage, Treasury Board), provinces (e.g., Saskatchewan, Alberta) and Industry (e.g. Mining Association of Canada, Forest Products Association of Canada). CAU's reach is expanding with presentations to foreign governments and organizations. (e.g., a Bolivian Delegation and United States Congressional Staff). Other audiences have included the Conference Board of Canada Council on Corporate Aboriginal Relations and the Calgary Chamber of Commerce among others.

Consultation and Accommodation Unit

There is evidence that the CAU and its activities have contributed to an increased level of clarity in key consultation and accommodation issues. The training, information sharing, Guidelines, tailored presentationsand other supports produced and promoted by the CAU have added to the understanding of the concepts surrounding the legal duty to consult and, in certain cases, accommodate Indigenous groups.

This clarity has reportedly occurred at various levels ranging from senior management to field staff. Factors contributing to this increased clarity have been included staff training and orientation, development of handbooks and guidelines, and the reiteration of the importance of consultation in department/agency strategy documents and leadership messages.

One tool to improve clarity, which was specifically noted by key informants was the consultation protocols with signatory parties that set out a clear process for consultations. The protocols have been beneficial for projects under development and for assisting in developing relationships in communities that enables a full discussion on perspectives. As noted by key informants, additional work remains to be done in negotiating and implementing memorandums of understanding with provinces and territories and protocol agreements with Indigenous communities in an effort to support clarity on consultation and accommodation issues, including clarity for industry.

With respect to industry, some key informants noted that many industry officials remain unclear on specific roles and regularly question INAC staff about roles and responsibilities for all partners involved in economic development activity. In addition, despite assessments being done at the federal or provincial level, the communities affected are not always clear to proponents. On occasion, proponents are given a list of potentially affected communities or tribal councils and left to determine precisely which communities may be affected.

Despite the clarity on perspectives that might be expected from a formal agreement, a document review examined the experience of the Mi'kmaq-Nova Scotia-Canada Terms of Reference and revealed a number of statements made by the Kwilmu'kw Maw-klusuaqn after three years of operational experience with the Terms of Reference. Although they had positive views on the inclusive development process, the commitment from the three parties, the formalization of the consultation process, and the fact that Mi'kmaq concerns have been brought to various government departments, there were a number of challenges in their view, including failure to consistently follow the terms of reference, consultation funding, communications, time gaps, and legislated timeframes.

Another barrier to improving clarity involves overlapping claims. A report on energy development in Canada noted that such conflicting claims have been a longstanding issue among Indigenous communities, with a high potential for lengthy disputes. Such disputes may influence final investment decisions, resulting in delayed or abandoned projects. This issue is beyond the scope of the CAU or any consultation and accommodation process as it is best resolved by Indigenous communities. However, as the report noted: "Industry accepts its role in Indigenous consultations, but requires more clarity from Canada about the respective roles of industry and the federal Crown. In some instances, industry has expressed frustration, objecting to the scope of responsibilities it is expected to assume.

Consultation and Accommodation Unit

The extent to which the CAU has specifically contributed to a consistent approach among federal departments and agencies to fulfilling the duty to consult is difficult to determine beyond its support and coordination activities. The CAU provides tools and other supports, such as the Guidelines and advice that other sectors within INAC, other government departments as well as provinces and territories can use. In the Federal/Provincial/Territorial Working Group or interdepartmental teams, the CAU staff can offer advice, review policies, and share best practices. But sectors within INAC and other government departments vary on how much they seek of CAU support in sharing their policy changes with the intradepartmental and the interdepartmental working groups. The CAU has no mandate or authority to compel these partners to follow their guidance. The CAU does not have the authority to insist on changes in proposed policies or that certain steps are followed so that accountabilities remain with the responsible organizations. However, there is a risk that actions in one sector at INAC could create legal requirements for another sector.

There is a clear statement in the Guidelines that, while each department was expected to adhere to the Guidelines, there was an expectation that departments and agencies would organize themselves to meet their obligations using a tailored approach that would best suit their needs. Attempting to enforce consistent practices across the federal and provincial/territorial governments is beyond the mandate of the CAU, conflicts with the authority of other stakeholders. Instead, the CAU offers support and guidance for federal departments and agencies as they work to fulfill their obligations around the duty to consult.

Challenges to achieving consistency with respect to consultation and accommodation can also extend beyond the federal government. Each jurisdiction - federal, provincial and territorial - is unique in its operating environment and its approach to Indigenous issues. For example, the Government of British Columbia has a centralized model for consultation and has been engaged in consultations with Indigenous groups for over twenty years and put into place its own consultation policy in 1995. It has worked closely with First Nations, developing tools, procedures, guidelines, data and information technology systems available to provincial government officials, First Nations and industry. British Columbia and Canada currently have a memorandum of understanding in place on data sharing related to ethno anthropology information. This is being used to help both British Columbia and Canada make determinations about the strength of claims, which determines the assessment of the consultation and accommodation requirements. This provides an example of federal and provincial governments cooperating to enhance consultation and accommodation practices, which may result in better management of related legal and business risks.

Another barrier to achieving consistency with respect to practices and an accompanying legal risk is the lack of clarity on what 'accommodate' actually means and how much government has to accommodate Indigenous groups where appropriate, or what kind of accommodation would be appropriate.