Building Relationships and Advancing Reconciliation through Meaningful Consultation

Setting the foundation for meaningful consultation

There is no single recipe for meaningful consultation. However, the successful approaches of some industry proponents and government entities have certain common ingredients, such as bringing the right attitude and outlook to the table, a focus on building relationships and trust, and engaging as early as possible in the decision-making process.

The federal government needs to lead by example and place a greater focus on these key foundational elements of meaningful consultation. This will require it to first shift its mindset on and approach to the duty to consult. In particular, Canada needs to move from seeing consultation as primarily a legal obligation to manage or a process to document concerns to instead seeing it as a valuable tool and opportunity to improve its relationship with Aboriginal groups and advance reconciliation and other shared objectives. Consultation and accommodation is a means to an end, not an end in itself.

In addition, the federal government needs to focus on making broader improvements to its existing relationships with Aboriginal groups. The lack of positive relationships between many Aboriginal groups and many federal departments and agencies has been a barrier to consultation, particularly when combined with many longstanding unresolved Aboriginal grievances and disputes over the nature and scope of Aboriginal and treaty rights. This has often resulted in consultations becoming protracted or sidetracked by unrelated or broader issues because Aboriginal groups feel they lack other effective fora to address their concerns.

Some industry proponents have been very effective in building relationships with Aboriginal groups and are well ahead of the federal government in this area. Others have not had such success. Sometimes this occurs despite all reasonable efforts. In other cases, some proponents may have been able to avoid or minimize issues had they made greater efforts to build relationships at the outset and engaged Aboriginal groups earlier in the process.

To set the foundation for meaningful consultation, Canada should ensure that the overarching focus of any new guidance for federal officials and industry is on how to build or improve relationships with Aboriginal groups and how to use the duty to consult as a key tool and framework to support these efforts. There should also be a greater emphasis on engaging Aboriginal groups as early as possible before key components of a project or a proposal are finalized and become difficult to change.

These changes will, however, require more than guidance. Federal departments and agencies need to prioritize and improve their relationships with Aboriginal groups through concrete measures that build trust, advance priorities of Aboriginal communities, and provide effective fora to address other long-standing concerns in a timely manner.

Aboriginal groups also have an important role to play. There are two sides to every relationship and reconciliation is not a one-way street. Success will require compromise and give-and-take on all sides and an understanding of each other's perspectives, interests, and respective challenges.

Enhancing capacity & removing impediments to meaningful consultation

Canada also needs to take steps to enhance the capacity of Aboriginal groups, federal officials and industry proponents to engage in meaningful consultation and address other issues impeding this dialogue.

Many Aboriginal groups feel that they lack the resources and expertise needed to respond to consultation requests, particularly for resource development projects. This is a frequent early issue in consultation and industry proponents and federal officials often grapple with how to best to handle capacity funding requests from Aboriginal groups. Canada needs to do more to address this, including by reducing unnecessary capacity pressures, providing clearer guidance on capacity support and the reciprocal obligations of Aboriginal groups in making such requests, enhancing capacity funding, and encouraging the pooling of capacity resources where possible.

Action is also needed to address the capacity challenges that federal officials and some industry proponents face. Among other things, they need more guidance and training to better understand and adapt to the context in which they are undertaking consultation, including greater cultural awareness of the significant differences between and among First Nations, Inuit and the Métis and improved guidance and information regarding treaty rights and Aboriginal rights assertions. These differences cannot be ignored as meaningful consultation requires a nuanced rather than one-size-fits-all approach.

Enhanced guidance, training and policy authorities are also required to address other impediments to the perceived meaningfulness of consultation and ensure that it is not just a process to exchange information. This includes, but is not limited to, the scope and way in which potential impacts are assessed, when and what accommodation may be required, when consent is required, and how to ensure greater transparency in decision-making. Beyond guidance, Canada also needs to implement effective mechanisms to address issues outside of the mandates of any regulatory processes relied upon for consultation and accommodation.

Clarifying roles and providing increased oversight

Finally, Canada needs to provide increased oversight and coordination across the federal government and greater clarity on industry's expected role in consultation and accommodation.

Canada needs to be more transparent about what it is delegating to or relying on industry proponents for and what the Crown remains responsible for. Federal departments and agencies also need to provide increased oversight of proponents and the consultation process and work with industry, provinces and territories to identify ways to improve coordination, reduce inconsistent approaches to key issues in consultation, and minimize duplication.

The need for oversight is not, however, limited to proponents. Across and within departments and agencies, guidance is not being consistently followed or implemented. Greater senior oversight within departments and agencies as well as central horizontal oversight is needed to ensure a truly whole-of-government approach to consultation and accommodation.

All of this work will require further dialogue with Aboriginal groups and where affected, industry, provinces and territories. It will take time but it is critical to get this right in order to ensure that consultation advances rather than hinders the hard and important work of reconciliation.

Overview of the duty to consult

Prior to the patriation of the Constitution, the Aboriginal rights of First Nations, Métis and Inuit peoples were not constitutionally protected in Canada and could be extinguished by the Crown. This changed with the adoption of section 35 of the Constitution Act, 1982 which recognizes and affirms the "existing aboriginal and treaty rights of the aboriginal peoples of Canada". ^{Footnote 2}

Since then, the Supreme Court of Canada (the SCC) has defined the scope of this promise in a series of decisions that set out a framework for the recognition of Aboriginal rights and title and the reconciliation of the interests and claims of Aboriginal and non-Aboriginal Canadians. The SCC has held that the "grand purpose" of section 35 is the "reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship. "^{Footnote 3} It has also defined the tests for Aboriginal rights^{Footnote 4} and title^{Footnote 5} while at the same time indicating that these rights are not absolute and can be infringed by the Crown if certain requirements are met through the justification test. ^{Footnote 6}

"While the asserted but unproven Aboriginal rights and title are insufficiently specific for the Honour of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. 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. "

A key related legal development was the recognition of the Crown's duty to consult, and potentially accommodate Aboriginal peoples. In a series of decisions beginning in 2004, the SCC held that the Crown has a duty to consult whenever it has real or constructive knowledge of an asserted or established Aboriginal right or title and contemplates conduct or a decision that might adversely affect it. ^{Footnote 7}

The duty to consult is a constitutional duty that is grounded in the honour of the Crown and is part of the reconciliation process. ^{Footnote 8} It applies to asserted but unproven rights as well as rights established through the courts or agreed to in treaties. ^{Footnote 9} The level of consultation required in a given situation is highly contextual and falls along a spectrum. It is proportionate to a preliminary assessment of the strength of the Aboriginal claim and the seriousness of the potential impact of the proposed government action on the asserted or established Aboriginal or treaty right at issue. ^{Footnote 10}

Consultation may reveal a duty to accommodate, particularly in instances where there are established rights or a strong prima facie case for Aboriginal rights or title and the potential for significant impacts on these asserted or established rights. However, accommodation is not a stand-alone duty and is not required in all instances. Accommodation may entail taking steps to avoid irreparable harm, mitigating, or minimizing the effects of a government action or decision on the Aboriginal interests at stake. ^{Footnote 11}

Throughout the process, the Crown must act in good faith at all times and with the intention of substantially addressing the concerns raised. ^{Footnote 12} Good faith is a key thread that binds both consultation and accommodation. It requires the Crown to consult with an open mind and make genuine efforts to understand and address Aboriginal concerns before making a decision. Consultation is not intended to simply afford Aboriginal groups an opportunity to "blow off steam" before the government does what it intended to do all along. ^{Footnote 13}

The Crown has significant flexibility in how it meets the duty to consult and it can rely on regulatory or environmental assessment processes to do so, where appropriate. ^{Footnote 14} The duty to consult ultimately rests with the Crown but it may delegate procedural aspects of the duty to industry proponents. ^{Footnote 15} Provinces and territories are responsible for meeting their own respective consultation obligations and there is no federal supervisory role, including for consultation obligations relating to historic treaties. ^{Footnote 16}

The courts have repeatedly held that there is no duty to agree and that Aboriginal groups do not have a veto over land use pending the final resolution of a claim. ^{Footnote 17} Instead, the duty is a commitment to meaningful consultation with give and take on all sides. Consultation is not a one-way street; Aboriginal claimants have reciprocal obligations to participate in good faith and express any concerns that they have. They cannot frustrate reasonable good faith efforts by refusing to participate or meet or by imposing unreasonable conditions. ^{Footnote 18}

If Aboriginal title has been established, the Crown must seek the consent of the title-holding group for developments on or use of the land. If consent is not provided, the Crown can only proceed if it has fulfilled its duty to consult and can justify its infringement on Aboriginal title. ^{Footnote 19}

Over the last several years, many Aboriginal groups have taken the position that the Crown must obtain their free, prior and informed consent for any decisions affecting their asserted or established Aboriginal or treaty rights. This is based, in part, on certain provisions in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada initially voted against UNDRIP but later endorsed it on a qualified basis, expressing concerns about free, prior and informed consent (FPIC), among other things. Several court decisions have held that UNDRIP, including FPIC, is not legally binding in Canada and does not change Canada's laws on the duty to consult. ^{Footnote 20} The new federal and Alberta governments have since committed to implementing UNDRIP but it remains to be seen how the FPIC provisions will be interpreted and implemented by these governments and what impacts this will have on consultation and accommodation. This issue is more fully discussed in section 5 of this report.

The above section provides a high-level overview, rather than an exhaustive summary of the key principles of the duty to consult. A number of other relevant legal principles will be addressed in other sections of this report.

Canada's current approach to consultation and accommodation

Canada consults with Aboriginal groups on a wide spectrum of activities such as environmental assessments and permitting for energy and mining projects, disposals of Crown land, overlapping interests related to land claims, species at risk, and the management of fisheries. Each department and agency is responsible for meeting any consultation obligations arising within its respective mandate. These consultations take place in a variety of fora including bilateral meetings with Aboriginal groups or representative aggregates, joint committees established through modern treaties, regional forums, and multi-stakeholder processes. In the case of resource development projects, Canada has to date generally integrated consultation into regulatory review processes rather than creating separate processes. This is known as Canada's "whole-of-government" approach to consultation and accommodation.

Over the past decade, the federal government has taken a number of steps to support federal officials in meeting Canada's consultation obligations.

First, the federal government has developed guidelines for its officials on when the duty to consult may arise and how it may be fulfilled. The first version was released in 2008 and an updated version was released in 2011. The 2011 Guidelines contain a set of Guiding Principles and Consultative Directives, guidance to departments and agencies on developing an overall approach to consultation, and step-by-step guidance for federal officials to design and implement a consultation process. Some departments and agencies have also developed additional mandate-specific guidance and tools on consultation and accommodation. ^{Footnote 21}

Second, the federal government has provided non-mandatory training on the duty to consult to more than 3,550 federal officials across Canada since 2008^{Footnote 22} and established other mechanisms to share relevant information, best practices and improve coordination on consultation. For example, in 2011, INAC created the Aboriginal and Treaty Rights Information System (ATRIS) to provide a single point of access to information on established and asserted Aboriginal and treaty rights that might trigger the duty to consult. In addition, INAC chairs a Consultation and Accommodation Interdepartmental team of key regulatory and land holding departments and agencies that meets monthly to discuss legal updates and common challenges and share best practices. There are also regional networks of federal consultation practitioners that meet quarterly to do the same as well as several Regional Consultation Coordinators at INAC. ^{Footnote 23}

In addition, the federal government has taken steps to increase oversight and coordination of Crown consultation for major resource development and infrastructure projects through the Major Projects Management Office (MPMO) and the Northern Projects Management Office (NPMO) for projects north of the 60^th parallel. MPMO and NPMO were established in 2008 and 2010, respectively, to provide a single point of entry to and overarching management and coordination of the federal regulatory process for major projects. In addition to the offices themselves, there is a Deputy Ministers Committee and an Assistant Deputy Ministers Committee^{Footnote 24} that meet monthly to discuss issues arising from major projects and provide any needed direction, including on Aboriginal consultation and accommodation.

Third, the federal government has taken action to address specific challenges with Aboriginal consultation and engagement on major resource projects in the territories and the west. For example, Canada developed a Model of Consultation and Accommodation Practice in the Northwest Territories and the Yukon for environmental assessments and regulatory reviews with accompanying training and tools and has also worked to enhance the capacity of northern Aboriginal communities to participate in resource development through the Community Readiness Initiative. ^{Footnote 25} In May 2014, Canada also established the Major Projects Management Office West in Vancouver to provide a single window for First Nations to engage with the federal government on issues relating to west coast energy infrastructure development. ^{Footnote 26}

Finally, given their significant role in this area, the federal government has also worked with the provinces and territories to improve information sharing and coordination on Aboriginal consultation and accommodation. This work has been done primarily through the federal/provincial/territorial working group on Aboriginal consultation and accommodation although the federal government has also been negotiating Memoranda of Understanding with provinces and territories to further improve coordination and information sharing.

Guidance documents

As noted above, I was asked to seek input on three guidance documents which are further described below.

Overview of what I heard

I heard a fairly wide range of views about Canada's approach to consultation and accommodation in this engagement. At one end of the spectrum, some Aboriginal participants said that Canada's approach has been a dismal failure. In their view, Canada's approach has been dysfunctional, has failed to respect Aboriginal rights and title and account for indigenous legal orders and governance, and is out of step with Canada's domestic and international legal obligations. These comments were not only based on Canada's actions but also its perceived inaction or absence, with some participants suggesting that Canada had effectively abdicated the field on consultation either to the provinces or proponents, or both.

Further along the spectrum, many Aboriginal groups suggested that Canada has been taking a minimalist, one-size-fits-all approach that is focused on managing legal obligations and risk rather than on relationship building and achieving reconciliation. They see the 2011 Guidelines as articulating a shallow view of reconciliation and feel that Canada has attempted to minimize its responsibilities through a papered consultation process aimed at ticking boxes rather than meaningfully consulting. Many Aboriginal groups also stated that Canada has routinely imposed consultation processes that fail to incorporate Aboriginal perspectives or recognize and accommodate the uniqueness of Aboriginal groups and key historic, regional, legal, and governance differences among them.

A small number of Aboriginal groups were less critical of the content of the 2011 Guidelines but felt that the key failure has been in implementation, particularly outside of major projects. Industry participants also raised significant implementation concerns with the federal government's overall approach to consultation, particularly the lack of coordination and inconsistent approaches within the federal government and with the provincial and territorial governments. They also expressed frustration about the lack of clarity about the respective roles and responsibilities of the Crown and industry and the extent to which the federal government relies on proponents to fulfill consultation requirements.

In addition to implementation concerns, industry participants said that they lacked the practical guidance needed to address issues on the ground. They feel that the absence of clear guidance on what is required, insufficient federal oversight, and the lack of timely decision-making in certain instances is contributing to significant uncertainty for resource development and investment in Canada. They also expressed concerns about consultations becoming protracted by unrelated issues due to the lack of other effective processes for Aboriginal groups to advance these issues with the federal government.

Many federal officials also raised concerns with the sufficiency of current guidance. They felt that the 2011 Guidelines are too high-level and do not provide enough direction, particularly on accommodation and for Crown decisions outside of major projects. A small minority of participants suggested that the 2011 Guidelines were good but simply needed to be updated to account for developments in the case law such as the SCC's Tsilhqot'in decision on Aboriginal title.

Notwithstanding these criticisms, some participants acknowledged that Canada has made progress in certain areas and spoke positively of a couple of federal agencies. In particular, many Aboriginal groups said that Parks Canada was an example of a respectful and collaborative partner that listens to and works well with Aboriginal groups. The Canadian Environmental Assessment Agency (CEAA) was also singled out by several Aboriginal groups as a federal entity that engages in meaningful consultation in the context of comprehensive study environmental assessments, although it was also the subject of substantial criticism on several issues.

In addition to these positive comments, it should be noted that the courts have found that Canada has met the duty to consult more often than not when they have been asked to make a ruling on this issue. These decisions demonstrate that there is in some cases a gap between what Aboriginal groups expect regarding consultation and accommodation and what the law requires. However, it does not negate or undermine all of the criticisms of Canada's approach. Many federal government decisions are not challenged for a variety of reasons and these win-lose decisions do not deal with the broader relationship issues at stake and the significant costs they impose. Victories in court are also a flawed measure for success; all parties concerned would rather keep consultation out of the courts in the first place. More meaningful consultation by the federal government is needed to make that possible.

This report contains 6 sections. Section 2 addresses the need for the federal government to set the foundation for meaningful consultation. Sections 3 to 6 address specific issues regarding consultation and accommodation that were raised in the engagement along with my recommendations on how to address them.

Building relationships and reframing Canada's approach

In this engagement, many Aboriginal groups and some industry proponents felt that the federal government was not sufficiently focused on building relationships and advancing reconciliation with Aboriginal peoples. Many Aboriginal groups felt that the federal government only shows up when it wants something and then fails to follow-up on issues that are important to their communities. Industry proponents also reported hearing frequent complaints from Aboriginal groups that federal officials do not visit their communities or address their concerns.

The federal government's historically fractious relationship with Aboriginal groups has been a major impediment to successful consultation on federal decision-making. The significant mistrust that Aboriginal groups have of the federal government often leads them to be suspicious of Canada's motives and doubt the accuracy of the information provided to them. In addition, because of the lack of other effective fora to resolve long-standing concerns in a timely way, consultation is often used by Aboriginal groups to raise a broad range of potentially unrelated issues while they have Ottawa's attention. This can unnecessarily broaden the scope of consultation discussions and impede the resolution of issues relevant to the decision at hand.

These criticisms do not apply equally across the board. As noted previously, Aboriginal groups spoke highly of Parks Canada and its approach to relationship building and engagement in recent years. Parks Canada's approach is not without issues nor has it always been a leader in this area. ^{Footnote 29} It has had to rebuild trust and relationships with Aboriginal groups in the shadow of significant historic grievances including the forcible removal of Aboriginal peoples from their land and the prohibition of traditional practices on lands that became park lands. However, over the last 15 years, Parks Canada has prioritized and invested in engagement and relationship building with Aboriginal peoples and now works with over 300 Aboriginal communities across Canada and manages over 65 per cent of the lands through formal or informal relationships with one or more Aboriginal partners. ^{Footnote 30}

I realize that the experience of Parks Canada is somewhat distinctive in the federal government given its mandate for environmental stewardship and its level of interaction with Aboriginal groups. That said, valuable lessons can still be drawn from some of its successes and the experience of others that have built positive relationships with Aboriginal groups.

If Canada wants to improve its approach to consultation, federal departments and agencies need to place a greater focus on building better relationships with Aboriginal groups. Consultation cannot be divorced from the overall relationship. As a result, any efforts to improve the federal government's current approach to consultation will not fully address the issues impeding consultation without broader changes to the relationship. The need for a greater focus on relationship building with Aboriginal groups is required in any event to implement the direction that Prime Minister Justin Trudeau provided to all Cabinet Ministers:

"I made a personal commitment to bring new leadership and a new tone to Ottawa. We made a commitment to Canadians to pursue our goals with a renewed sense of collaboration. Improved partnerships with provincial, territorial, and municipal governments are essential to deliver the real, positive change that we promised Canadians. No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership. " (emphasis added)

This renewed relationship is badly needed and long overdue. But it will not happen by accident or through words alone. Federal officials need guidance, resources, and oversight to ensure that this does not become yet another unfulfilled promise to Aboriginal peoples.

There are several new approaches that could help federal officials and industry focus more on relationship building and thereby establish this key ingredient for meaningful consultation.

"For industry, companies that do not strive to build healthy relationships with Aboriginal communities do so at their peril,"

First, Canada should reframe all three guidance documents so that the overarching focus is on building strong relationships with Aboriginal groups and advancing reconciliation, with the duty to consult being an important tool and framework for this work. This requires a shift in mindset and attitude – to see the duty to consult as an opportunity to build better relationships and advance shared objectives and not simply a cost or legal obligation to manage. To support this shift, Canada needs to articulate in any new guidance that building strong relationships with Aboriginal groups and advancing reconciliation is a priority and explain the range of benefits for doing so.

The federal government also needs to provide guidance and training to federal officials and industry on how to go about building and maintaining relationships with Aboriginal groups, particularly in the early stages of project development or government decision-making. Canada should look to successful approaches both in government and industry and extract key principles and best practices in consultation with Aboriginal groups. There are also some existing guidance documents that Canada can draw on for ideas. For example, Parks Canada articulated its approach well in a 2014 resource guide titled Promising Pathways: Strengthening Engagement and Relationships with Aboriginal peoples in Parks Canada Heritage Places. ^{Footnote 31}

Other jurisdictions like British Columbia have also begun to provide guidance on relationship building for proponents, which Canada could consider. ^{Footnote 32}

Second, Canada needs to ensure that federal officials have a better understanding of the framework within which they are building relationships. This requires a more comprehensive understanding of the complexities of the Crown's relationship with Aboriginal peoples, the nature and scope of Aboriginal and treaty rights, and greater cultural awareness and appreciation of the significant differences between First Nations, Métis and Inuit peoples. This will be addressed in Section 3 of this report.

"…. what s. 35(1) does is provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. "

Third, as the duty to consult is part of the larger reconciliation project, the federal government should also articulate how the duty to consult fits into and can be used to advance reconciliation. This requires not only acknowledging the long history of the Crown making decisions without consultation that adversely affected Aboriginal interests but also developing a better understanding of the concept of reconciliation and a shared vision for achieving it. In its 2015 report, the Truth and Reconciliation Commission noted that "the concept of reconciliation means different things to different people, communities, institutions and organizations. "Reconciliation cannot be advanced without a shared understanding of its purpose and objectives. Without this, it risks being a word used by passengers aboard two ships passing in the night. ^{Footnote 33}

Fourth, to ensure that relationship-building and reconciliation are prioritized, federal departments and agencies should be required to set their own concrete objectives designed to improve relations and advance reconciliation with Aboriginal groups backed by performance measures. As noted by Alain Latourelle, the former CEO of Parks Canada, "unless you make it an organizational wide priority, put it on performance assessments and put in support you are not going to have success". ^{Footnote 34}

Parks Canada has 5 key Aboriginal relations priorities: (i) building meaningful relationships with Aboriginal peoples (ii) creating economic partnerships (iii) increasing Aboriginal programming at parks/sites (iv) enhancing employment opportunities and (v) commemorating Aboriginal themes. ^{Footnote 35} Federal departments and agencies should work with Aboriginal groups to identify key priorities that can help to improve their own relationships, advance common interests and resolve long-standing concerns. Future engagements about implementing the recommendations in the Truth and Reconciliation Commission Report may identify some of the priorities on which to focus. This should be done in collaboration with other departments and agencies to ensure coordination of objectives and approaches.

Fifth, federal officials need to be prepared to raise concerns with the approaches of other departments and agencies if they are falling down on consultation and accommodation and undermining Canada's relationship with Aboriginal peoples. If Canada wants to have a nation-to-nation relationship, then federal departments and agencies need to act as a unified Crown and not just a number of different departments and agencies solely focused on their own individual mandates without considering how the approaches of other Crown representatives could impact the broader relationship. It also requires acknowledging that Canada's relationship with Aboriginal peoples is not just the responsibility of Indigenous and Northern Affairs Canada – it is the responsibility of every single federal department and agency. This point is effectively underscored by the above direction from the Prime Minister to all Cabinet Ministers. This needs to be supported through central oversight which will be discussed later in this report.

Finally, relationship building and improved consultation processes will also require greater action to resolve or narrow the many areas of disagreement on the nature and scope of Aboriginal and treaty rights. This has been a failure of many successive governments. It continues to undermine the relationship between Aboriginal groups and the federal, provincial, and territorial governments and has had significant costs for the Canadian economy. A new comprehensive framework is needed to ensure that Aboriginal and treaty rights are appropriately recognized and respected and to bring greater certainty for all parties. This requires more effective implementation of treaties and improved policies to expeditiously reach negotiated agreements with Aboriginal groups on the nature and scope of unresolved asserted Aboriginal rights and title and disputes over treaty rights, where possible. ^{Footnote 36}

Work to develop a new framework for Aboriginal and treaty rights was commenced by the previous federal government, including through an engagement by Ministerial Special Representative Douglas Eyford on the development of a new comprehensive claims policy,^{Footnote 37} the engagement by Ministerial Special Representative Thomas Isaac to map out a process for dialogue on Section 35 Métis Rights^{Footnote 38}, and the adoption of a Cabinet Directive on the Federal Approach to Modern Treaty Implementation. ^{Footnote 39} This new framework is badly needed to support the task of reconciliation and this important work should continue in earnest.

"There is no simple formula to building a strong relationships with local Aboriginal groups. Relationships are by nature complex and personal, which makes them difficult to define and even more difficult to reproduce. However, there are a number of common elements that exist in every strong relationship, although they may be found in varying degrees – mutual trust, respect and understanding. "

Relationship building will take time and short-cuts can result in set-backs. It requires picking up the phone and more face-to-face meetings to understand concerns and avoid the erroneous assumptions that can arise on both sides from not talking. It also requires a willingness of the federal government to be bolder and think outside of the box. As one participant noted, Canada should be more willing to dip its toes in the water to try more experiments and pilot projects as some provinces have done. Regional rather than national approaches on issues will also likely yield more success as consensus is easier to build incrementally and the approaches can be better tailored to take into account the significant differences between Aboriginal groups across the country. Some of these efforts may fail but there will be lessons learned that can help to find a more successful approach the next time. This is an area of incremental change but it is the small steps that move things forward. Neither the enormity of the task nor the fear of precedent should be used as an excuse to paralyze progress.

Aboriginal groups also have an important role to play in this and their approach will be critical to the success of starting a new chapter. The SCC has made it clear that reconciliation requires compromise and give-and-take on both sides. The many issues in this area are complex and involve multiple interests that the federal government must appropriately balance. These issues cannot be resolved overnight nor should change wait for the perfect solution, which can unduly delay progress and meaningful improvement in the interim. Aboriginal groups need to come to the table with constructive approaches and a willingness to find a middle ground where possible in order to advance shared objectives.

Promoting early engagement

Early engagement is frequently singled out by both Aboriginal groups and industry as a key ingredient of meaningful consultation. The term "engagement" is used rather than "consultation" because it frequently occurs before the duty to consult is formally triggered.

For industry proponents, engaging as early as possible can provide more opportunities to develop plans that avoid or minimize impacts on key Aboriginal interests before significant investments are made and project adjustments become more difficult. This is important to the perceived meaningfulness of consultation even though it may begin before consultation is legally required. If done properly, early engagement can be a key tool in building trust and starting a relationship out on the right footing.

Both Aboriginal groups and industry indicated that the guidance documents need to put a greater emphasis on early engagement and explain how best to go about it. Current federal guidance on this issue is limited. Guiding Principles #2 and #3 in the 2011 Guidelines highlight the importance of initiating consultations early in the planning, design or decision making process but do not provide clear guidance on exactly when and how this should be done. The Draft Proponent Guidance is even more limited on this issue and simply states that industry proponents should ensure that "consultation with Aboriginal groups occurs early and throughout the project".

This guidance is insufficient. Early engagement is important and can have significant impacts on the consultation process if it is not done or not done properly. This current guidance leaves several unanswered questions, including what does "early" mean in specific contexts like a mining project or a policy change and what is the best way to approach these discussions?In the resource development context, for example, it is often suggested that "early" means engaging prior to filing a project description. However, there are differing views and approaches about how far in advance of finalizing a project description this should be done and how best to initiate such discussions, including the degree to which senior leadership of a company should be involved. Aboriginal groups expect to be engaged well before the key components of the project are decided (e. g. the location of a tailings pond) or at the early stages of policy development or other government decisions that could impact asserted or established rights (e. g. the creation of protected areas, the selection of treaty lands or additions to reserve lands where there are overlapping interests etc. ). They also want discussions with industry proponents to be initiated by the senior leadership of the company. There is currently a lack of consistency among industry and the federal government on early engagement and greater guidance is required based on best practices of industry and any lessons learned from various federal government early engagement initiatives.

Understanding and adapting consultation to the context

One of the frequent criticisms of the federal government's approach to consultation is that it is not respectful of the important differences between Aboriginal groups. By way of background, there are over 617 Indian Act bands, 53 Inuit communities in four regions, six provincial and territorial Métis organizations, and numerous Métis local councils in Canada. There are significant cultural and historic differences between these groups and the nature and scope of their asserted or established rights vary considerably. There is also substantial variation in the capacity of Aboriginal groups to respond and participate effectively in consultation processes. These differences require significant nuance in the federal government's approach, which is currently lacking. In particular, there is a need for greater guidance, training and information sharing for federal officials and industry on (i) general cultural awareness and understanding the differences between and among First Nations, Inuit and Métis (ii) the nature and scope of Aboriginal rights and title assertions and (iii) treaty rights. I will address each in turn.

Meaningful consultation requires a specific skillset

Another important way to ensure that meaningful consultation occurs is by making certain that those conducting consultations have the necessary skillset to do so. The federal government's approach to the duty to consult has been to provide overall guidance to departments and agencies on what is required but leave them with the discretion on how to operationalize this guidance within their respective mandates. In general, this has resulted in consultation being undertaken by officials within the sector of a department or agency that is responsible for the decision or by regional officials, rather than by a specialized team of consultation staff within each department and agency.

This approach can be problematic because it fails to recognize that a specific skillset is required to effectively consult with Aboriginal peoples. Consultation is an art that requires, among other things, strong interpersonal and collaborative skills, cultural awareness and sensitivity, out-of-the-box thinking, and a willingness to challenge the status quo. Federal officials are in essence, as one aptly put it, being asked to engage in "domestic diplomacy". Certain people have or are capable of developing the skillset, outlook, and enthusiasm required for effective consultation and relationship-building. Others do not, even though they may have other strengths and otherwise excel in their jobs.

One of the many interesting aspects of this engagement was trying to understand what, in particular, led some Aboriginal groups to report positive consultation experiences. In many of the cases involving the federal government, it related to specific individuals who were excelling in their positions. This underscores the importance of having the right people, with the right skillset in the right positions for consultation.

In my view, too many federal officials are tasked with undertaking Aboriginal consultation in the federal government as an add-on to their day jobs and without the appropriate support. With the exception of Parks Canada and to some degree CEAA, there should be a more experienced or specialized group within each department or agency to lead and facilitate consultations, working in conjunction with appropriate subject matter experts relevant to the decision at hand.

This does not mean that Aboriginal consultation and relationship building is only the concern of a few federal officials in each department or agency. All federal officials working in areas in which the duty to consult may be triggered, including senior officials, need to be thinking about consultation and how it can be used to improve the relationship with Aboriginal groups and decision-making in general. Subject matter experts and senior officials need to be actively involved in the consultation process and, to the extent possible, hear concerns directly. However, they would benefit from the expertise of consultation specialists to help facilitate discussions, particularly on more contentious issues. Having some continuity in the team of officials consulting for a specific department would also be beneficial for relationship building, as meaningful relationships cannot be developed between Aboriginal groups and hundreds of officials within each department.

Promoting greater collaboration in the consultation process

Another area of concern related to the meaningfulness of consultation is the perceived unilateral approach of federal officials and some industry proponents in determining key issues that impact the nature and scope of consultation and accommodation. The structure of the 2011 Guidelines is likely not helping this issue as the document devotes 15 pages to pre-consultation analysis and planning by federal officials (largely without the input of Aboriginal groups) and only 5 pages to actual consultation and accommodation discussions with Aboriginal groups. Many Aboriginal groups felt that federal officials and certain industry proponents need to be more collaborative in their approach, particularly on issues like assessing impacts, strength of claim, and setting up the process for consultation.

Ensuring appropriate and timely information sharing

Aboriginal groups frequently raised concerns about the timeliness of consultation and sufficiency of information that they receive from federal officials and industry in consultation. The 2011 Guidelines do not provide much assistance on these issues. It states that federal officials should provide "adequate notice" and disclose "relevant information" but does not shed any light on what "adequate notice" or "relevant information" would be. The Draft Proponent Guidance is similarly vague, stating that proponents should provide "clear and relevant information" on the proposed activity and any adverse impacts in a "timely manner" and "with enough time to assess any adverse impacts of the proposed activity on their rights. "

More specific guidance is needed as federal officials and industry struggle with these issues. It is also an unnecessary source of frustration for Aboriginal groups that is undermining the perceived meaningfulness of consultation. This greater guidance is not intended to prescribe a ceiling but rather a minimum floor of what is required for meaningful consultation.

With respect to "relevant information", Aboriginal groups reported that they often do not get certain basic information that they feel is needed to determine potential impacts on their rights, such as quality mapping. They also indicated that Canada generally provides very little information about its rationale for the scope and depth of consultation proposed or the federal government's preliminary views on the potential impacts on asserted or established rights. With respect to proponents, Aboriginal groups stated that the quality of information varies – some are upfront and provide sufficient disclosure while others provide limited information which requires significant follow-up.

Although the nature of information required varies with the decision, Canada can and should provide better guidance on the type of information that, at a minimum, should be included in an introductory letter and information package. This could be supplemented by department and agency specific guidance for particular decisions based on discussions with Aboriginal groups about what information they require. Several provinces like Nova Scotia have guidance on this which Canada should consider as a start in devising its own list. ^{Footnote 72} This guidance should address both project related decisions as well as other resource and land management, policy, regulatory, and legislative decisions. ^{Footnote 73}

In terms of the sufficiency of notice, Aboriginal groups raised a number of concerns about how early they are notified and consulted and the amount of time that they are given to respond. There were several examples where Aboriginal groups were given 2 or 3 weeks to review and respond to a complex matter that required reviewing hundreds of pages and/or outside expertise. Aboriginal groups also raised concerns about the lack of flexibility and the fact that timelines often do not take into account their cultural calendars.

Short inflexible timelines are problematic for Aboriginal groups for a number of reasons. First, they assume Aboriginal groups have adequate baseline information on where members are exercising their asserted or established Aboriginal rights and can easily assess impacts. This is not the case in many instances. Second, they do not take into account the resource restraints of Aboriginal groups and the fact that consultation matters are often handled by people with multiple responsibilities. Third, they may not account for the complexity of the matter and the possible need for expert advice. Fourth, they may not be compatible with the timing of decision-making processes of Aboriginal groups, including the fact that Chief and Council typically only meet once a month.

There are, however, other concerns and interests that need to be balanced. For example, some resource management decisions need to be made quickly. ^{Footnote 74}Canada also needs to appropriately weigh the rights and interests of both Aboriginal groups and industry proponents. The SCC has held that good government requires decisions to be made in a timely way, and has emphasized the right of third parties to have government decisions made in a procedurally fair manner and within a reasonable time. ^{Footnote 75}

While there are legislated timelines for environmental assessments under CEAA 2012, there is very little consistency outside of environmental assessments regarding how much time Aboriginal groups are given to respond on a given issue even within the same department. Some provinces have addressed this issue by stipulating specific notice times for all decisions that fall within a particular consultation level – e. g. 15 days business days for consultation at the low level. Aboriginal groups do not like these set timelines because they feel it is a cookie-cutter approach that does not take into account the nuances of a particular issue and the situation of the Aboriginal group. On the other hand, many industry proponents prefer this fixed timeline model because it provides predictability. Some industry proponents expressed frustration with the lack of timelines for certain federal permits and authorizations, such as authorizations relating to reserve land. This understandably makes it very difficult for them to plan their business activities.

There is a need for timelines but they must be reasonable and appropriate to both the depth of consultation required and the complexity of the matter at issue. In order to achieve this, Canada should develop consistent timelines for consultation on specific types of decisions – i. e. policy and regulatory changes, fisheries management decisions, and other specific permits and authorizations. Where possible, and particularly for decisions that are not time-sensitive, there should be some flexibility to extend timelines for cultural or community considerations that could impact availability, such as the summer Aboriginal fishery season, although such extensions must be made in a way that balances the rights of any affected third-parties to timely decision-making.

Refining Canada's reliance on regulatory processes

Aboriginal groups frequently raised concerns about Canada's reliance on regulatory processes to fulfill the duty to consult. They feel that these processes do not allow for meaningful consultation or the direct nation-to-nation dialogue that they desire.

Canada's reliance on existing regulatory and environmental review processes to fulfil the duty to consult is consistent with the jurisprudence in principle^{Footnote 76} and the courts have held that Aboriginal groups have an obligation to use these processes to address their concerns as long as they are adequate, accessible, and provide an opportunity to meaningfully participate. ^{Footnote 77} In August 2015, the Federal Court of Appeal held that there were "strong practical reasons" to rely on regulatory processes to fulfill the duty to consult but in all cases the Crown must"assess whether additional consultation activities or accommodation is required in order to satisfy the Honour of the Crown. "^{Footnote 78}

Although each case depends on its facts, the courts have found in several cases that Canada has met the duty to consult when it relied in whole or in large part on regulatory processes such as the National Energy Board (NEB), the licensing process of the CNSC, or the environmental assessment process of CEAA. ^{Footnote 79} Despite this, Aboriginal groups continue to have significant issues with Canada's approach, particularly its reliance on the NEB and CEAA review panel processes.

First, Aboriginal groups indicated that they did not like the adversarial process of the NEB or CEAA review panels. They felt it is inappropriate for Canada to rely so heavily on processes that were not designed with Aboriginal and treaty rights in mind. They thought these processes are too legalistic and that the rules of evidence and statutory mandates preclude a meaningful discussion of their concerns, particularly impacts to asserted Aboriginal title and cultural and spiritual practices. ^{Footnote 80}

Second, many Aboriginal groups questioned the rigour of these processes and suggested they simply provide an opportunity for Aboriginal groups to "blow-off steam" or are at most an information gathering exercise. Some Aboriginal groups also felt that the NEB and CEAA do not have the necessary expertise and knowledge of Aboriginal communities, cultures and rights. However, this was not a uniform view with respect to CEAA and several Aboriginal groups, particularly in Atlantic Canada, spoke highly of their experience with the agency.

Third, Aboriginal groups felt that federal officials largely ignore the direction to assess whether additional consultation activities beyond the regulatory process are necessary. Indeed, there is a lack of machinery in the federal government to ensure that potential impacts that fall outside of the scope of a regulatory process but are within federal jurisdiction are dealt with in a timely and consistent manner. While side tables have been set up in some instances to deal with issues outside the process, this is the exception and not the norm.

Aboriginal groups indicated that the limits of statutory mandates are even more problematic when an environmental assessment is not required under CEAA 2012 as decision-makers acting under other statutes are often confined to a more narrow range of factors to consider that are not necessarily aligned with the requirements of consultation and accommodation. Statutory mandates do not relieve decision makers of the duty to consult on federal Crown conduct. They are required to respect legal and constitutional limits, and the duty to consult lies upstream of the statutory mandate of decision-makers^{Footnote 81}Statutory mandates either need to be expanded to bring them in line with the Crown's consultation and accommodation obligations and/or there needs to be some mechanism to ensure that issues within the scope of the duty to consult are considered by the appropriate federal entity. This must be resolved and simply stating that Canada has or will take a "whole-of-government" approach to consultation is not a solution. There need to be mechanisms to ensure this happens.

Fourth, Aboriginal groups are upset that the federal government does not always engage in direct consultation for resource development projects and, when it does, they feel it occurs too late in the process. Aboriginal groups indicated that waiting until after a review panel report is released to consult does not provide sufficient time to discuss and consider concerns that were not addressed in the regulatory process, particularly given the short window of time before a decision has to be made. Federal officials do track concerns raised in panel hearings and meet with Aboriginal groups prior to the regulatory process commencing. However, historically these discussions have been only to explain how the process will work and how to apply for capacity funding. Aboriginal groups, many industry proponents, and some federal officials believe that Canada should be at the table earlier, particularly when there are impacts or related issues that cannot be adequately dealt with through the regulatory process. Some federal officials also raised concerns about federal staffing and resources for consultation on major linear projects. I agree that this has been inadequate and should be enhanced.

Although these processes have not been successfully challenged in court to date, these concerns have real consequences. Even if unsuccessful, frequent court challenges to projects cause delay, increase risk and cost, and potentially reduce the likelihood of future investment. Dissatisfaction with existing provincial and federal regulatory processes has also led some Aboriginal groups to begin establishing their own environmental assessment processes, which create inconsistent requirements and additional regulatory uncertainty. These concerns can also negatively impact the federal government's relationship with affected Aboriginal groups.

Rigorous regulatory processes can be an effective means of addressing a very large portion of impacts to asserted or established Aboriginal rights and title and it makes no sense to have duplicative processes. However, every process has its limits. The new federal government has made a number of commitments that may lead to changes in this area, including modernizing the NEB to ensure, among other things, that it has sufficient expertise in Indigenous traditional knowledge. ^{Footnote 82}It has also committed to reviewing Canada's environmental assessment processes as well as all other laws, policies, and operational practices to ensure compliance with Canada's consultation and accommodation obligations. ^{Footnote 83} However, simply modernizing the NEB or adjusting the regulatory mandates of CEAA and the NEB will likely not resolve these issues. I recommend three additional improvements.

First, any pre-hearing engagement of Aboriginal groups by federal officials should not be limited to procedural issues. Aboriginal groups should be able to raise their initial concerns about a project prior to the regulatory process. This will enable federal officials to identify early on which issues can likely be dealt with in the regulatory process, which issues will need to be dealt with through a separate process, and which fall outside of the federal government's jurisdiction. CEAA has started engaging on Environmental Impact Statements filed by proponents prior to hearings but there is still typically no engagement with Aboriginal groups on substantive issues prior to NEB hearings, although the new process for Energy East is a positive exception. ^{Footnote 84}

Second, once issues are identified and categorized in the pre-hearing engagement, there should be a mechanism early in the process to assign federal responsibility for issues that fall outside of the statutory mandates of CEAA, the NEB, or other federal regulators but are still within federal jurisdiction and relate to potential impacts from the project. While some of these issues may warrant a broader discussion at the MPMO Deputies Committee where there is no department or agency willing to take responsibility, the resolution of such issues should not depend on getting on the agenda of the MPMO Deputies Committee. A specific protocol with timelines should be developed and a federal entity like the Major Projects Management Office should be empowered to assign responsibility to the appropriate department or agency if agreement cannot be reached among potentially impacted federal departments or agencies. There also needs to be greater guidance for federal officials on how to deal with Aboriginal concerns that do not fall within federal jurisdiction or are not tied to potential adverse impacts from the Crown decision at issue and should be dealt with in a separate process on a different time track to ensure that consultations do not get unnecessarily side-tracked.

Third, Canada should be prepared to make use of the provisions in CEAA 2012 to allow for short extensions where necessary to address outstanding concerns of Aboriginal groups. Predictable timelines are beneficial but they are of little help if the project is subsequently delayed with protracted litigation because concerns were not adequately addressed at an earlier juncture. In some cases, there is an obvious impasse and no amount of additional time will resolve the issue. However, in other cases, additional time may allow for issues to be resolved or may be otherwise necessary to ensure meaningful consultation. Time extensions should, however, still remain the exception and not the rule. Earlier engagement, increased federal staffing for major projects, and policy mandates to address commonly raised issues like Aboriginal title will likely obviate the need for most extensions. Any extension of timelines should be done in close consultation with affected proponents and in compliance with obligations of procedural fairness.

Improving consultation on policy, regulatory and legislative changes

Another area where Aboriginal groups raised concerns about the meaningfulness of consultation was on federal policy, regulatory and legislative changes. Federal officials also frequently indicated that they need more guidance in this area.

In Rio Tinto, the SCC held that the duty to consult can be triggered by strategic, higher level decisions such as the approval of a multi-year forest management plan or the establishment of a review process for a major gas pipeline approval. The Federal Court of Canada also recently held that the duty can be triggered by the introduction of legislation that may adversely impact asserted or established Aboriginal or treaty rights although this decision is currently under appeal. ^{Footnote 85}

Consulting on policy, regulatory and legislative changes that may adversely impact asserted or established Aboriginal or treaty rights is an area in which federal officials are struggling. In some cases, it is simply not happening. In other instances, it is being done but on a concept at 35,000 feet or too late in the process and with national or regional Aboriginal organizations or Tribal Councils, the vast majority of which do not have the authority to speak for rights-holders in consultation. This is not to say these organizations should not be consulted as well, where appropriate. However, these consultations are not sufficient in themselves to discharge the Crown's duty to consult unless the organizations have the explicit authority to speak for the affected rights-holding group.

There needs to be much more guidance on how and when to consult with respect to policy, regulatory and legislative changes as well as international agreements that may adversely impact asserted or established Aboriginal or treaty rights, none of which are addressed in detail in the 2011 Guidelines. This includes when and whom to consult and best practices on the nature of information and amount of notice and response time to provide. Related to this, there should also be a requirement that all Memoranda to Cabinet include an assessment of whether the duty to consult is triggered by any proposed changes and, if so, how it was addressed. This could be similar to what is now required for modern treaties in the Cabinet Directive on the Federal Approach to Modern Treaty Implementation.

Consultation on legislation is a particularly thorny issue but it is not going away. Regardless of the outcome of the appeal in Mikisew Cree First Nation v. Canada, Canada should take a more consistent approach to this issue. In its 2014 decision in Mikisew Cree, the Federal Court of Canada held that the federal government should have given notice to the Mikisew Cree together with an opportunity to make submissions upon the introduction of two omnibus bills that made significant changes to Canada's environmental laws. Notably, the Court found that the duty to consult did not arise until after the legislation was introduced in Parliament and that the duty was at the low end of the spectrum (notice and an opportunity to respond). This finding is not consistent with the expectations of Aboriginal groups who want to be consulted long before legislation that may affect their rights is even introduced. This is an area where, in some cases, Canada may want to go beyond what is strictly required at law in order to ensure more meaningful consultation and avoid damaging its relationship with Aboriginal groups. There are recent examples of the federal government consulting long before the introduction of legislation but there has not been a consistent approach to this. ^{Footnote 86}

One of the biggest hurdles to addressing this issue is the sheer magnitude and difficulty of conducting consultations with hundreds of Aboriginal groups and organizations on issues that have potential impacts across the country. Some Aboriginal groups take the position that this is Canada's problem to sort out. This perspective is not particularly helpful to finding a way forward. Aboriginal groups and organizations should be part of the solution and work with the federal government to find a meaningful but manageable process to get input on policy, regulatory and legislative changes that may adversely impact Aboriginal or treaty rights across the country, potentially through aggregation in each region. It is in their interests to do so, particularly if they want to be consulted prior to the introduction of legislation and at a higher level than notice and an opportunity to make submissions.

Access to decision-makers and mandates

Several Aboriginal groups raised concerns that consultation is frequently delegated to lower level federal officials who do not have decision-making authority and can only listen and gather information. Some expressed frustration that they engage in good faith consultation only to be told by federal officials that they do not have the mandate or authority to address certain issues that the Aboriginal group wants to discuss. Others raised concerns about the lack of access to and face-to-face meetings with federal officials altogether for consultation.

From a practical standpoint, it is not possible for the most senior officials in departments and agencies to attend all consultation meetings with Aboriginal groups given the sheer number of consultations and their other responsibilities. Moreover, on any given issue, there are multiple people involved in making a decision even within a department. There are also many issues that may fall within the jurisdiction of another department or that, in the case of resource development projects, proponents may be better positioned to deal with.

These concerns about access to decision-makers and mandates can largely be addressed through the implementation of other recommendations in this report. Indeed, part of this frustration links back to the overall lack of a relationship and other effective fora to address broader concerns. Efforts to improve the relationship and better address Aboriginal priorities or provide other forums to advance those matters could help mitigate this issue.

For resource development projects, the federal government can better ensure it has the right people in the room through the early identification of and assignment of responsibility for issues that fall outside of the mandates of a particular regulatory process. On more contentious decisions, consideration could also be given to having more senior officials participate in consultations or altering the reporting structure to ensure that those conducting the consultation have a more direct line to the respective Assistant Deputy Minister or Deputy Minister.

In addition, two other measures could assist in this area.

First, there needs to be more training for senior federal officials on Aboriginal consultation so that they better appreciate the scope of Canada's responsibilities when asked to make decisions. This was a concern of Aboriginal groups and federal officials for both substantive decision-making and decisions relating to consultation resources and travel. The duty to consult training has to date largely been taken by federal officials at the operational level which does not ensure that senior officials have a full understanding of the challenges and opportunities in this area.

"…. you don't build relationships in boardrooms; you build relationships on the land and in Aboriginal communities, when you have the courage and strength to meet them on their own terms. "

Second, there needs to be more flexibility for federal officials to travel to Aboriginal communities or meet in-person in another location. This was a concern raised by numerous federal officials. In my view, there is no better way to build relationships than meeting with Aboriginal groups in their communities. This is an important sign of respect. It also enables a more fruitful dialogue and it allows people to better understand the circumstances in the community.

Travel in the federal government, like elsewhere, has been significantly restricted due to budget restraints. This will need to be re-examined if the federal government wants to build stronger relationships with Aboriginal groups and improve its approach to the duty to consult.

Increasing transparency and improving follow-up

Many of the concerns that Aboriginal groups raised regarding the meaningfulness of consultation related to a perceived lack of transparency and follow-up by federal officials. Many Aboriginal groups do not feel consultation is meaningful because they do not see their concerns reflected or addressed in the ultimate decision. They also raised concerns with the lack of transparency about what information is provided to decision-makers and what factors were considered in making certain decisions.

Aboriginal groups understandably want to ensure that decision-makers have an accurate summary of any outstanding concerns. The federal government has, in some cases, begun providing affected Aboriginal groups an opportunity to review and provide comments on the Crown consultation record or provide additional short submissions to the decision-maker. However, this is not being done consistently and sometimes it occurs too late in the process to discuss how inaccurate understandings of concerns can be addressed. There should be a consistent, transparent and timely approach to this issue to ensure decision-makers have an accurate understanding of the views of Aboriginal groups.

In addition, many Aboriginal groups also expressed significant frustration that they put substantial time and expense into responding to consultation requests but rarely receive information on how their concerns were taken into account. They are informed of the final decision but often left guessing at to how their concerns were addressed or why specific concerns were not addressed. This is particularly problematic for Governor in Council decisions. This lack of information creates distrust and suspicion and understandably makes it difficult for Aboriginal groups to see the consultation as meaningful.

The 2011 Guidelines do contain a section on how to communicate decisions relating to accommodation but it appears that this guidance is not being followed in all instances, particularly in explaining why the accommodation options suggested by Aboriginal groups were not incorporated or addressed in another way. The feedback loop is time consuming but it is a critical component of meaningful consultation. Based on what I heard during this engagement, the lack of feedback appears to be one of the key issues undermining the perceived meaningfulness of consultation by the federal government. It needs to be given far greater emphasis in the new guidelines for federal officials and with resources and oversight necessary to support this work.

In some cases, there also needs to be greater overall transparency in decision-making. For example, Aboriginal groups frequently raised concerns with the lack of transparency in fisheries decisions. They feel that DFO decision-making on issues like food, social and ceremonial (FSC) fishing allocations takes place in a black-box. Many BC First Nations told me that they are not provided with adequate explanations as to how their annual FSC allocations are determined and why they have not increased since the early 1990s, despite substantial population increases in their communities (which in some cases have doubled). The lack of change in the numbers understandably raises questions about the meaningfulness of DFO's consultations, particularly when specific conservation concerns are not adequately explained and there is no common understanding of how to even determine the food, social, and ceremonial fishing needs of a particular Aboriginal group. ^{Footnote 87}It also leads Aboriginal groups to suspect that their priority of access for FSC fishing over commercial and recreational fisheries is not being respected.

DFO admittedly has a very challenging role. It must make complex resource management decisions based on imprecise science while balancing the views and interests of a wide range of fisheries interests. The department has also faced significant resource constraints. That said, Aboriginal groups are rights-holders and this needs to be appropriately reflected in DFO decision-making. More detailed explanations should be provided to explain how interests were considered and why specific concerns cannot be accommodated. This includes the process for determining FSC allocations under the Aboriginal Fisheries Strategy (AFS). The AFS should be comprehensively reviewed with Aboriginal groups and other affected stakeholders and consideration should be given to defining FSC as recommended by the Cohen Commission.

Finally, Aboriginal groups raised concerns about the lack of transparency after decisions are made, particularly in the environmental assessment process. In many cases, conditions are added to federal permits to address certain Aboriginal concerns. However, Aboriginal groups reported that they do not generally receive information about whether the project is meeting its terms and conditions. There is also a general lack of awareness of how these issues are monitored, with the exception of CNSC. This is an issue of trust that can have negative ripple effects for future projects. It should be looked at more closely by federal regulators involved in permitting for resource development projects to ensure that information on the process and outcomes of monitoring is appropriately shared with affected Aboriginal groups. This work could also look at ways to enhance opportunities for Aboriginal groups to be involved in compliance monitoring, where possible, in order to build greater confidence in federal regulatory processes.

Improving Canada's approach to accommodation

"The effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government's proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. "

During this engagement, concerns were frequently raised with the federal government's approach to accommodation. Many Aboriginal groups felt that their concerns were usually not adequately addressed through accommodation whereas federal officials and industry pointed to the lack of sufficient guidance on accommodation.

There is no stand-alone duty to accommodate but the effect of good faith consultation may reveal a duty to accommodate. The question of whether and what accommodation is required in a given case is very fact specific but the level of accommodation required will typically increase along the spectrum of the duty to consult. As such, the strength of the right asserted, the importance of the affected activity to the Aboriginal group, and the nature and severity of the impact will be important factors in assessing any accommodation required.

Accommodation at law involves taking measures to avoid, minimize or mitigate impacts on Aboriginal rights or interests. It requires "seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation". ^{Footnote 88}This necessitates balancing Aboriginal concerns with other societal interests. ^{Footnote 89}Absent a declaration of Aboriginal title, accommodation does not require that an agreement be reached or that all of the Aboriginal group's requests be granted. ^{Footnote 90}

To date, the case law has not required financial compensation for impacts to asserted but unproven rights and this matter has been treated somewhat inconsistently by the courts. ^{Footnote 91} However, regardless of whether financial compensation is treated as accommodation at law, many Aboriginal groups take the position that they should share in any prosperity derived from resources in their traditional territories and some proponents and provincial governments do provide direct and in-kind compensation or revenue sharing in certain circumstances.

Many Aboriginal groups contend that the federal government takes a too narrow view of accommodation and overly relies on proponents to provide accommodation. In their view, federal accommodation focuses almost exclusively on environmental mitigation measures through terms and conditions of licences or permits. They find this problematic because these mitigation measures may not eliminate the adverse effects at issue and cannot adequately address cumulative effects, economic or other accommodations for the loss of the use of land, or impacts to cultural and spiritual practices. Aboriginal groups want to see a much broader view of accommodation options including revenue sharing or financial compensation, shared decision-making, land protection measures, land transfers, and a no-development option where appropriate.

Several Aboriginal groups pointed to the restrictions of statutory mandates as a key obstacle to a more comprehensive approach to accommodation. This is notwithstanding the statement in the 2011 Guidelines that "the mandates of federal departments and agencies should not limit the options for accommodation available to Aboriginal groups". Some federal officials acknowledged the limitations of government policy authorities in addressing issues like strong Aboriginal title assertions and the insufficient mechanisms for ensuring a whole of government approach to accommodation where issues go beyond the mandates of specific decision-makers.

Finally, some Aboriginal groups feel that the federal government uncritically accepts accommodation measures proposed by proponents and does not sufficiently discuss these measures with Aboriginal groups. A number of Aboriginal groups perceive that the federal environmental review process is set up for approval and feel that Canada needs to be more open to rejectingprojects. The 2011 Guidelines indicate that saying no is one of the considerations under accommodation but Aboriginal groups want this option to be more clearly stated.

For its part, industry frequently raised concerns about the lack of clarity and direction from the federal government on accommodation. While there was a range of perspectives on the extent of industry's role in accommodation, the vast majority wanted to see Canada take a more active role and provide greater clarity on what is expected in order to reduce project uncertainty. Industry representatives indicated that they are supportive of entering into impact benefit agreements with local Aboriginal communities where appropriate but they frequently find it challenging to determine whether and with whom they should enter into agreements, given overlapping claims and disagreements over the nature and extent of impacts. Some also find it challenging to deal with the expectations of Aboriginal groups for financial forms of accommodation that go beyond reasonable compensation for the impacts at issue or when projects are in early conceptual and development stages and resources are limited, particularly in the case of junior mining companies.

Many industry representatives and federal officials indicated that they would like to see the development of a clearer framework for accommodation specifying the nature and degree of impacts that may require accommodation, how to determine what accommodation is appropriate for specific types of impacts, examples of typical accommodation measures,^{Footnote 92} roles and responsibilities as between the Crown and industry on accommodation, the reciprocal obligations of Aboriginal groups, and how the federal government will determine if any accommodation requirements have been met.

There is a lack of sufficient guidance from the courts on accommodation but this should not prevent the federal government from proactively developing a more detailed policy framework on this issue. This framework should also be supplemented, where appropriate, by department and agency specific guidance on potential accommodation measures for commonly raised concerns, such as impacts to fish habitat.

This framework should give particular attention to issues like cumulative effects and impacts to strong Aboriginal title assertions. With respect to cumulative effects, consideration needs to be given to what can reasonably be addressed in the context of a federal project review rather than through more pro-active and inclusive land-use planning or other processes and monitoring mechanisms. In the case of strong Aboriginal title assertions, greater thinking is needed by the federal government on ways to preserve the Aboriginal interest pending resolution of these claims by considering the least intrusive impacts on asserted Aboriginal title lands, offset land protection measures, greater participation in decision-making, potential "economic accommodation" measures, and situations in which the appropriate accommodation may be denying an approval. At the same time, any framework for accommodation for asserted but unproven rights needs to remain connected with the purpose of the duty to consult. This duty was recognized by the courts in order "to ensure that land and the resources that are the subject of negotiations will not have been irremediably depleted or alienated by the time an agreement is reached". It is not intended to provide Aboriginal groups with what they would be entitled to if they prove or settle their claims. ^{Footnote 93}

The framework should also provide greater guidance on consultation and accommodation in the context of overlapping Aboriginal title and rights claims, which is particularly challenging in BC. This is an area of significant confusion and uncertainty for proponents both with respect to the approach that should be taken and roles and responsibilities as between the Crown and industry proponents. Greater efforts are also needed by Canada and relevant provincial and territorial governments to help facilitate the resolution of these disputes.

It should be noted that the federal government did provide some additional general advice on accommodation in the Draft Proponent Advice, including a chart of eight example accommodation measures. While additional guidance in this area was welcome, this guidance was seen as insufficient because (i) it does not assist in determining the question of whether and to what degree accommodation is required (ii) the chart of examples is too limited and (iii) it does not address the issue of overlapping claims. There should be industry specific examples (beyond pipelines) as well as additional examples of avoidance, mitigation or other accommodation measures such as habitat restoration and environmental monitoring, and measures to mitigate or offset impacts to cultural or spiritual practices. ^{Footnote 94}

While these measures have not been recognized as legally required accommodation, the guidance could also include examples of other forms of compensation or community benefit measures that may be considered and can be found in some private agreements between proponents and Aboriginal groups, such as revenue sharing, skills training, procurement opportunities, employment contracts, and measures to revitalize Aboriginal cultures and languages. These measures can provide very important benefits for Aboriginal communities and proponents and assist with gaining social licence and support for the project even if they are not legally required accommodation.

Good faith & assessing the adequacy of consultation

Several Aboriginal groups felt that the 2011 Guidelines emphasize process over substance and that none of the three guidance documents place sufficient emphasis on the need for meaningful consultation. ^{Footnote 95}This was a common concern with consultation on the ground as well. There is a perception that some federal officials come in with pre-conceived decisions, are not open to change, and just want to tick the box and move-on. In the words of one Aboriginal group, they "hear us but don't listen".

"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 (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. "

There should be a greater emphasis in the new guidelines about the need to conduct consultation in good faith and to approach any discussions with an open-mind and a willingness to consider or make changes. The 2011 Guidelines speak about the need for federal officials to act in good faith but do not really explain what this means in practical terms for consultation or accommodation. The Draft Proponent Guidance does not even mention the term "good faith" although it does touch on related concepts. Aboriginal groups told me that a key determinant of success in both relationship building and consultation is the attitude that proponents and officials bring to the table. Good faith is an integral component of this – which requires listening, being open-minded, and willing to take ideas on board and change approaches where appropriate. Consultation is not just a process to exchange information and the new guidance needs to drive home that point.

There should also be efforts to ensure the guidance is not too process heavy. There is considerable discussion throughout the 2011 Guidelines about documentation and records management systems. While there needs to be guidance on this issue, the significant focus on documentation perpetuates the perception that consultation is simply a process to record rather than meaningfully address concerns. It also makes the document much longer than needed. This could be addressed in part by having separate guidance that is simply referred to as needed in the new guidance for federal officials and industry.

Finally, there is no consistent mechanism to ensure that the criteria of meaningful consultation are implemented through adequacy assessments before decisions are made. The 2011 Guidelines contains a list of questions for federal officials to evaluate the effectiveness of a consultation process after the fact but this evaluation is completed after the decision is made and the questions are not sufficiently focused on ensuring meaningful consultation.

Improving guidance to proponents

In Haida, the SCC recognized that the Crown may delegate procedural aspects of consultation to industry proponents for particular projects. However, the Court was also clear that the Crown has ultimate responsibility for meeting the duty to consult and cannot delegate the duty itself or the honour of the Crown. ^{Footnote 96}

The federal, provincial and territorial governments have tended to rely heavily on proponents to carry out consultation on resource development projects. Given the significant role industry frequently plays, both Aboriginal groups and industry have long called for greater guidance. This was the impetus for the federal government to develop the Draft Proponent Guidance.

There was a mixed reaction to this document. Aboriginal groups had largely negative views. Some felt that the guidance was rudimentary and a missed opportunity to be bold and inform proponents of some hard-truths. Many others were concerned by what it did not contain, such the absence of any reference to Aboriginal title and the potential requirements of consent and justification. It was also felt that there was insufficient direction on capacity funding.

Some industry proponents thought the guidance was helpful and appreciated the additional clarity. Many others thought it fell short in a variety of ways. Some indicated that the guidance document only set out the bare legal minimum required and that in practice they would go well beyond this guidance in consulting and developing partnerships with Aboriginal groups. Others thought it was too general or contained too many expectations for industry without adequately explaining what exactly was required or providing advice on how to deal with specific challenges that industry routinely faces. Concerns were also raised with the lack of guidance or information on how Canada will determine the adequacy of consultation and that to some the document appeared to transfer even more responsibility to industry on issues like accommodation and identifying who needs to be consulted.

In my view, the Draft Proponent Guidance is not particularly helpful or enlightening. I have already addressed a number of areas where additional guidance is needed for proponents. The concerns below are additional issues with the Draft Proponent Guidance that I have not or will not address elsewhere in this report.

First, the document is too-high level and lacks the clear and practical guidance industry proponents need and want. They are looking for more than just a high-level overview of the duty to consult and a chronology of steps to follow. They want a better roadmap on how to navigate common challenges that arise in consultation (e. g. accommodation, capacity funding, and cumulative effects etc. ) based on best practices and supplemented by process specific guidance. If this guidance is going to be included in the next version of the guidelines for federal officials, it should refer proponents to other relevant sections for clearer guidance on issues such as early engagement and relationship building, identifying and assessing adverse impacts, the nature of information that should be provided to Aboriginal groups at the outset of and during consultation, how to deal with capacity funding requests, what constitutes meaningful consultation and accommodation, how the federal government assesses the adequacy of consultation, and how to address issues like Aboriginal title and consent. If it is going to be a stand-alone document, these issues will need to be more fully addressed and the guidance should include overarching guiding principles.

In order to provide more practical guidance, it would also be helpful to include non-attributable "lessons learned" by proponents in key areas and what companies and their consultation practitioners have found to contribute to successful consultation and relationship building. It would also be of assistance to include a detailed "frequently asked questions" section to provide Canada's position on issues commonly raised by proponents, like capacity funding requests. The BC Ministry of Aboriginal Relations and Reconciliation Guide to Involving Proponents When Consulting First Nations provides a helpful Q&A for frequently raised issues and the federal government should consider something similar, although it would be beneficial to get the input of industry and to consider some of the helpful guidance that has been developed by certain industry associations.

Second, in cases where this has not already been done, federal departments and agencies should clarify what specific information they need proponents to obtain from Aboriginal groups, including particular questions they should consider asking. There should also be greater guidance on how to report information to the federal government. Federal officials indicated that industry proponents often request templates for issues tracking tables, consultation plans and reports and there is an inconsistent approach taken across the federal government on this. Templates should be developed or the federal government should list the specific information it wants to see in these documents to ensure that the information needed is collected and proponents are aware of what is expected. ^{Footnote 97}

Third, some industry participants were concerned that the Draft Proponent Guidance does not discuss the reciprocal obligations of Aboriginal groups to participate in consultation and does not contemplate situations in which Aboriginal groups refuse to engage with proponents. Particular concern was raised with the statement that Canada "expects industry to establish positive working relationships with Aboriginal groups and to maintain these relationships throughout the life cycle of their projects. " While this is the objective, some industry participants were concerned that this can be beyond their control if an Aboriginal group refuses to participate. This is a fair point. The language should be revised to reflect an expectation of best or all reasonable efforts and the guidance for proponents should either discuss the reciprocal obligations of Aboriginal groups to participate in consultation and not frustrate the process or refer to the section in the new guidelines for federal officials that does. ^{Footnote 98}

Fourth, Canada should clarify the statements that (i) "Corporate social responsibility measures, such as employment and social benefits, may not address adverse impacts on potential or established Aboriginal or treaty rights" and (ii) "robust consultation and accommodation activities carried out by proponents do not guarantee project approval". With respect to the former, several industry participants felt that this was overly dismissive of measures that could help address and compensate for adverse impacts. These measures may not mitigate impacts but this does not mean that they cannot be used to compensate for unmitigated impacts. In regards to the second statement, some proponents felt that it created substantial uncertainty, particularly when coupled with the lack of guidance on what the federal government will consider for adequacy assessments. This is a needed disclaimer because consultation must consider the full-range of possible outcomes to be meaningful but it could be better worded to explain why this is the case and what the government will consider in making this assessment. ^{Footnote 99}

Fifth, several proponents and Aboriginal groups were concerned by the statement in the Draft Proponent Guidance that "If an agreement is struck between a proponent and an Aboriginal group that addresses adverse impacts, this information needs to be communicated to Canada. "Some perceived this as requiring full disclosure of any impact benefit agreements or similar agreements, including financial compensation. Based on my discussions with federal officials, I do not believe that this is the intent and it is instead targeted at ensuring that Canada is aware of any additional impact mitigation or monitoring measures that are not included in the permitting as well as ongoing consultation mechanisms. This should be clarified, with appropriate regard to maintaining the confidentiality of any commercially sensitive terms in agreements between Aboriginal groups and industry proponents^{Footnote 100}

Decreasing capacity demands on aboriginal groups

Both Aboriginal and industry participants suggested that one of the ways that Canada could help address Aboriginal capacity is by reducing the unnecessary duplication of effort through improved information sharing within the federal government, enhanced federal and intergovernmental coordination on related issues, and taking a more strategic and efficient approach to areas of frequent consultation activity.

Increasing training and in-kind capacity

Canada can also assist in building Aboriginal capacity through greater skills training, increasing access to federal experts, and enhancing knowledge about resource development issues.

Skills training is needed to help build up the in-house capacity of Aboriginal groups for consultation, particularly technical expertise for reviewing and responding to information provided in environmental assessments. The federal government should work with Aboriginal groups, the provinces, and territories to identify skills gaps in this area and develop or support targeted skills-training and apprenticeship initiatives. Greater access to experts within the federal government to answer questions could also assist with addressing capacity gaps.

In addition, there should be increased public education and sharing of information with Aboriginal groups about energy, mining and other resource development issues in Canada. Aboriginal communities that are potentially impacted by resource development need reliable and unbiased information to understand the potential impacts and risks of the various methods of exploration, development, and transport of resources in order to make informed decisions.

In his report, Forging Partnerships, Building Relationships: Aboriginal Canadians and Energy Development, Mr. Eyford recommended that:

"Canada should promote a principled dialogue about resource development with Aboriginal communities in Alberta and British Columbia. This can be accomplished, in conjunction with provincial and local governments and industry, by convening conferences, workshops, and community forums to improve knowledge about the energy sector and major projects. "

Mr. Eyford's recommendation was limited to Alberta and British Columbia because his mandate was focused on west coast resource development. In my view, this knowledge sharing is needed beyond BC and Alberta and Canada should work with the provinces, territories, and industry to promote similar initiatives for Aboriginal groups across the country that are impacted by resource development. These initiatives could also promote a dialogue about the ways Aboriginal traditional knowledge and participation can enhance environmental monitoring and stewardship for projects and best practices that can be drawn from positive experiences that Aboriginal groups have had with resource development.

In addition, it would also be beneficial for consultation if Canada continued to build on initiatives targeted at enhancing the capacity of Aboriginal communities to participate in resource development, such as the Community Readiness Initiative, the Aboriginal Forestry Initiative and the ongoing work of MPMO West.

Providing clearer guidance on capacity support

In addition to reducing capacity pressures on Aboriginal groups, greater guidance is needed for both federal officials and industry on capacity support.

Many Aboriginal groups take the position that capacity funding is a legal requirement for meaningful consultation and that there should be clear direction to industry and federal officials that capacity funding must be provided in all cases. The law on capacity funding is not quite as definitive. The need for capacity funding has been considered on a case-by-case basis and, to date, there has been no finding that the Crown or proponents have a legal obligation to provide capacity funding whenever they are consulting Aboriginal groups. However, some lower courts have linked capacity funding to an Aboriginal group's ability to participate meaningfully in consultation. ^{Footnote 102} In Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, Justice Smith held that "The issue of appropriate funding is essential to a fair and balanced consultation process, to ensure a 'level playing field'". ^{Footnote 103}In that case, the court imposed a consultation protocol that included an obligation for Ontario to cover the First Nation's "reasonable costs" although the parties in this case were disputing the quantum of capacity funding required and not whether capacity funding would be provided at all.

In other cases, the courts have suggested that capacity funding should be provided based on the complexity of the matter or that there should have been other accommodations to address capacity such as changing deadlines or making Crown resources available to the particular Aboriginal group. ^{Footnote 104} In other instances, the courts have commented favourably about the provision of capacity funding or other in-kind support, such as making Crown experts available for questions. However, there have also been recent cases where no capacity funding was provided at a certain stage or at all and this did not render the consultation deficient. ^{Footnote 105}

The 2011 Guidelines indicate that departments and agencies must assess requests for capacity funding and determine whether support should be provided and to what extent. However, it provides no guidance on the factors to consider in determining whether to provide capacity funding or the amount that should be provided in a given situation. ^{Footnote 106}The Draft Proponent Guidance offers even less information and simply notes that proponents should maintain a record of capacity assistance provided as "this information supports the assessment of adequacy of a consultation process. "

Provincial consultation guidelines and policies vary in the extent to which they encourage or require the provision of capacity funding. While all provinces provide some level of capacity funding, only Manitoba and Newfoundland and Labrador have policies directing officials or industry to ensure that Aboriginal groups have sufficient resources for consultation. Manitoba requires departments to provide "adequate resources to ensure meaningful consultation"^{Footnote 107} while Newfoundland and Labrador stipulates that industry must provide "reasonably necessary capacity funding". ^{Footnote 108}

I agree that the federal government should provide clearer guidance in this area. However, I do not agree or recommend that direct funding from the federal government or industry be required in all instances. The need for capacity funding should be assessed based on the particular circumstances. Capacity funding may not be necessary given the subject matter of the Crown decision or action, the level of consultation required, the potential for impacts on asserted or established Aboriginal or treaty rights, other capacity funding available or existing applicable assessments, or other in-kind capacity support. Canada should, however, require federal officials to consider in all instances at the outset of consultation whether there are any capacity barriers that need to be addressed to ensure meaningful consultation and provide a list of factors for federal officials to consider when determining if and through what means capacity support should be provided. This overarching guidance can be supplemented with department and agency specific guidance.

With respect to industry, there should be improved guidance that encourages industry proponents to discuss capacity needs with affected Aboriginal groups and to report any efforts made or offers to address capacity issues (in-kind or financial) to the federal government. This guidance should also indicate that Canada will consider whether there were any capacity barriers to meaningful consultation when determining the adequacy of consultation and the efforts or reasonable offers made to address these barriers. This will need to take into account the reciprocal obligations of Aboriginal groups not to impose unreasonable requirements in consultation, which should be highlighted in any guidance on capacity funding. Capacity funding requests need to be based on reasonable work plans designed to understand and assess impacts of the particular Crown decision at issue on asserted or established Aboriginal or treaty rights and formulate a response. There may be multiple ways to do this and flexibility is needed on all sides to find practical and cost-effective solutions.

Some industry representatives raised concerns about linking decisions about the adequacy of consultation to capacity funding. They felt that adequacy should be solely decided based on whether the Crown and proponents' have listened to concerns and appropriately addressed adverse impacts on asserted or established Aboriginal or treaty rights. This should continue to be the major focus of the adequacy analysis but meaningfulness also depends on the ability of Aboriginal groups to participate in the process. Again, achieving a meaningful process of consultation will not always require direct funding or providing the specific amount of capacity funding requested by an Aboriginal group when it is not reasonable for the scope of work required, the complexity of the matter, or the degree of impacts at issue. Discussing what specific capacity barriers exist and the work that Aboriginal groups want to do to assess impacts may also reveal other measures to address this such as making experts available to answer technical questions, extending timelines, providing additional project information in a non-technical manner, retaining joint experts, funding traditional land use studies, providing training and/or supporting initiatives that increase mining or energy literacy of a community.

Enhancing capacity funding

In addition to guidance, the federal government should enhance its current approach to capacity funding. Aboriginal groups raised a number of issues with respect to the level and nature of capacity funding provided by Canada. By way of background, the federal government currently provides limited capacity funding through a number of mechanisms.

First, the federal government provides participant funding to Aboriginal groups for major projects being reviewed by CEAA,^{Footnote 109} CNSC,^{Footnote 110} and the NEB. ^{Footnote 111} For example, depending on the depth of consultation required, CEAA provides potentially impacted Aboriginal groups up to $67,500 in participant funding per group for a comprehensive review EA and up to $95,600 per group for an EA requiring a review panel hearing.

Second, INAC provides capacity funding to aggregates of Aboriginal groups that have entered into consultation protocols with the federal government, several of which are trilateral and include a larger provincial capacity funding contribution due to greater provincial consultation activity. ^{Footnote 112}

Third, some departments provide capacity funding to Aboriginal groups or organizations to support particular consultations or enhance Aboriginal capacity to participate in resource management discussions. For example, DFO and ECCC jointly fund the Aboriginal Fund for Species at Risk which supports Aboriginal organizations and communities across Canada in improving their ability to participate in the protection and recovery of species at risk, preventing species from becoming a conservation concern, and recovering and protecting important aquatic and terrestrial habitat on Aboriginal lands. ^{Footnote 113} In addition, DFO provides funding through the Aboriginal Aquatic Resource and Oceans Management program to help Aboriginal fisheries organizations or other aggregates of Aboriginal groups participate in decision-making processes used for aquatic resource and oceans management. DFO also provides funding to support the work of the Yukon Salmon Sub-Committee, an advisory committee for salmon management in the Yukon established in the 11 Yukon Final Agreements.

There were several concerns raised with respect to this funding.

First, Aboriginal groups repeatedly stated that their capacity needs cannot be met with one-off project funding and that they need core capacity funding on a recurrent and predictable basis. Without predictable core funding, they often do not have the resources to hire staff devoted to consultation.

Second, there were numerous concerns regarding participant funding through CEAA, the NEB and CNSC. The amounts provided by all three were seen as insufficient and some Aboriginal groups reported that the CEAA funding process is overly complicated and the reporting requirements too onerous for the amounts at issue. Concerns were also raised that Aboriginal groups frequently do not receive explanations as to why capacity requests were denied.

Third, there were several concerns with the capacity funding provided through consultation protocols. Organizations with consultation protocols stated that the level of funding is inadequate to support the internal consultation needed with member First Nations. Other Aboriginal groups without protocols felt it was unfair that capacity funding was only available to aggregates or that they had been denied funding because they did not have sufficient federal consultation activity.

Fourth, Aboriginal groups stated that departments like DFO, Transport Canada and ECCC regularly consult but frequently do not provide capacity funding. In some instances, Aboriginal groups have also been informed by certain departments that they could not provide capacity funding because they did not have the funding authority to do so, which understandably was not well-received.

As noted above, DFO does provide capacity building funding through several different programs but this funding is limited and DFO and other departments do not provide capacity funding for all of their consultations with Aboriginal groups. Moreover, DFO's capacity funding is also largely provided to Aboriginal fisheries organizations or aggregates of Aboriginal groups based on watersheds rather than individual Aboriginal groups. While this approach to consultation makes sense from a fisheries management standpoint, these organizations have not in the past been authorized to speak for rights-holders for consultation as discussed above. This has resulted in individual First Nations taking the position that they have not been consulted or provided capacity funding by DFO, notwithstanding the funding that DFO provides to Aboriginal fisheries organizations in their respective regions. This will continue to be a challenge for fisheries consultations unless it is resolved where possible through discussions between DFO, Aboriginal fisheries organizations, and Aboriginal groups in particular regions.

With respect to project funding, Canada should look for ways to streamline the application and reporting process for participant funding through the NEB, CNSC and CEAA. It should also ensure that participant funding sufficiently incentivizes aggregation, including through the quantum available and/or the mechanism through which it is provided. There should also be a consistent approach taken across federal departments with respect to project based capacity funding for consultations relating to resource management and other strategic, high-level decisions.

With respect to core funding, the federal government can play a leadership role by working with provinces and territories to ensure that all Aboriginal groups have some core capacity consultation funding and by contributing core funding where there is a need and a certain threshold of federal consultation activity. The federal government is only part of the solution on this issue. Provinces, territories and industry also have significant roles to play. Of the government actors, provinces and territories should have the largest responsibility in this area because they generally have more frequent consultation activity with Aboriginal groups in comparison to the federal government. Given the amount of this activity, all provinces and territories (with the exception of Nunavut) should provide core capacity funding to Aboriginal groups or aggregates within their respective jurisdictions. Several provinces are now doing this, such as Alberta, Quebec, Ontario, New Brunswick and Nova Scotia, but other jurisdictions provide more ad hoc capacity funding through project funding and/or consultation protocols.

Any federal core capacity funding will need to be worked out by jurisdiction, having regard to the specific regional needs, the extent of federal consultation activity, and other capacity funding sources available to the Aboriginal group. One of the obstacles to addressing this is that the federal government does not have the information needed to make appropriate core capacity funding decisions. As discussed above, there is no central database tracking all consultations by the federal government or the capacity funding (if any) that it has provided to Aboriginal communities. Similarly, Canada does not have complete information on what other capacity funding communities are receiving from other sources like industry. This information is needed in order to identify capacity needs and how the federal government can assist.

Moreover, any discussion about increased federal capacity funding cannot be divorced from the significant competing funding pressures that Canada faces for other Aboriginal priorities, such as education, child welfare services, health-care, and infrastructure. Each dollar invested in capacity funding is a dollar that could be invested in other measures to narrow the unacceptable gaps in socio-economic indicators between Aboriginal and non-Aboriginal Canadians.

In reality, the federal government simply does not have the resources to sufficiently build up the internal consultation capacity of each Aboriginal community in Canada given the sheer number of Aboriginal communities and these other priorities that need investment. It also does not make practical sense to do so. Many of these Aboriginal communities are very small (i. e. less than 300 people) and part of larger nations that were fragmented by Canada for a variety of reasons. For example, there are over 617 Indian Act bands comprising just over 50 original nations or cultural groups in Canada. ^{Footnote 114} While all First Nations communities need some basic capacity support, it does not make sense for the federal government to provide substantial funding to over 617 communities to support a team of consultation staff with a range of expertise. The same is true for Métis local councils, which are often even smaller.

Given this reality, Aboriginal communities that are part of larger nations should strongly consider pooling consultation resources with communities within the same nation, region, or historic treaty through consultation protocols with the federal government. Individual communities can still make decisions on issues that directly affect their asserted or established rights but they would have access to a pool of shared resources, including federal capacity funding, to assist with certain common functions like triaging and prioritizing consultation requests and assessing common impacts. This would allow federal capacity funding to make a more meaningful difference and enhance the capacity of all parties by simplifying the process. Even in just the First Nations context, the difference in amounts when you divide a total by 617 instead of 50 or 150 is staggering. This cooperative approach is being taken, for example, by Canada with the Mik'maq in Nova Scotia and by the BC government with the Sto:lo. The federal government should be looking at ways to incentivize this type of aggregation where possible across Canada.

Consent

Justification

In addition to consent, many Aboriginal groups also raised concerns about the lack of guidance on justification for infringements of established Aboriginal or treaty rights, including Aboriginal title. Some Aboriginal groups with established fishing rights feel that the federal government gives almost no weight to the distinction between asserted and established rights in consultation and the need to justify infringements. Some federal officials also raised concerns with the lack of guidance in this area and indicated that they want greater guidance on what they should be doing where justification may be required.

By way of background, the Crown is required to justify any infringement of established Aboriginal or treaty rights. Justification and the duty to consult are distinct but related legal doctrines and justification is increasingly being raised in the context of consultation. In this engagement, it appeared that some participants were equating an "impact" on an established Aboriginal or treaty right to an "infringement". It is important to underscore that not every action that impacts an Aboriginal or treaty right constitutes an infringement. The impact must result in a meaningful diminution of the right, which must take into account the characteristics and incidents of the right at issue. ^{Footnote 124}As stated by the SCC in Grassy Narrows:

"Not every taking up will constitute an infringement of the harvesting rights set out in Treaty 3. This said, if the taking up leaves the Ojibway with no meaningful right to hunt, fish or trap in relation to the territories over which they traditionally hunted, fished, and trapped, a potential action for treaty infringement will arise (Mikisew, at para. 48). "^{Footnote 125}

Aboriginal title is different from other Aboriginal or treaty rights for the purposes of infringement because any use of the land without consent is an infringement. The SCC has held that the Crown must meet the following requirements to justify an infringement in the context of Aboriginal title:

1. It complied with its procedural duty to consult and accommodate;
2. The action is backed by a compelling and substantial legislative objective; and
3. The governmental action is consistent with the Crown's fiduciary duty to the group. ^{Footnote 126}

To date, there has been no case where a Court has done a full justification analysis and determined that an infringement is justified. ^{Footnote 127} A justification trial is, however, currently underway in British Columbia for five West Coast Vancouver Island First Nations which have a recognized "right to fish and sell fish", with the exception of the geoduck fishery. ^{Footnote 128}

While there is currently only one area where Aboriginal title has been recognized in Canada, there are many Aboriginal groups with treaty rights and other established Aboriginal rights. The federal government needs to have a framework to approach justification for potential infringements, particularly in the fisheries context. This is also needed in the resource development context where claims to Aboriginal title are strong and there is a risk of an Aboriginal title declaration during the life of the project. This will likely become an increasing focus in future litigation if it is not adequately addressed. This should be avoided by proactively developing and implementing guidance on justification, which is better suited to advance the ultimate goal of reconciliation.

Clarifying roles and responsibilities of industry

Most Aboriginal groups accepted that the Crown can delegate or rely on proponents to fulfill certain procedural aspects of consultation and that proponents are best placed to answer questions about their project and deal with at least some aspects of accommodation. However, some Aboriginal groups felt that the federal government relies too heavily on industry and were upset by the perceived casual nature with which Canada delegates consultation. They, and many industry proponents, are frustrated by the lack of clarity and transparency about which aspects of consultation the federal government expects industry to undertake and which it remains responsible for. Many federal officials also acknowledged that there was room for improvement in this area. ^{Footnote 129}

This is not a new issue. Mr. Eyford raised this in his report Forging Partnerships, Building Relationships and it is why he recommended that Canada "develop a policy framework clearly setting out the respective roles and responsibilities of Canada and industry with respect to Aboriginal consultations. "^{Footnote 130} Canada's response to this recommendation was the Draft Public Statement. While it is a relatively good motherhood statement on Canada's approach to consultation and accommodation, it unfortunately does not provide any additional clarity on the respective roles and responsibilities of industry and the federal government.

This issue needs to be addressed with clear guidance explaining what the federal government may delegate to industry proponents and what the federal government remains responsible for. ^{Footnote 131}Other provinces like British Columbia and Saskatchewan have provided clearer guidance on this and Canada should follow suit.

In addition, Canada should be more transparent about what it is delegating to or relying on proponents for in any given case. The 2011 Guidelines state that the "Crown should clearly communicate what is expected of third parties to industry proponents, Aboriginal groups and various stakeholders" but this does not appear to be happening in practice. Other jurisdictions like Nova Scotia and Saskatchewan have taken a more proactive approach by sending formal letters of delegation to proponents (copied to affected Aboriginal groups) setting out what is being delegated to and expected of proponents. This is a good practice that federal departments and agencies should emulate in order to clarify expectations and provide greater formality and transparency around delegation or reliance proponents.

Providing greater crown oversight of proponents

Proponents vary widely in their knowledge and experience with consultation and accommodation and Aboriginal groups frequently raised concerns regarding the federal government's level of oversight of proponents. Many feel that the federal government has been absent and has failed to resolve issues that arise with proponents.

Many industry proponents are also frustrated by the lack of oversight and would like the federal government to play a greater role in facilitating the consultation process, particularly in cases where there is an impasse or issues that only the federal government can deal with. They struggle with not knowing what is expected, particularly given the differing approaches taken by the federal, provincial and territorial governments. They also in some instances feel caught in the middle on issues unrelated to their projects and want greater leadership from the federal government to bring protracted consultations to a close. Some proponents were frustrated by Canada's insufficient action to address long-standing Aboriginal concerns and resolve Aboriginal rights and title assertions which are creating uncertainty for resource development and resulting in some projects being used to advance broader concerns with the federal government.

Given that the Crown remains responsible for the duty to consult, the federal government should maintain oversight over proponents throughout the process. This is important not only for ensuring that the duty to consult is met but also for the Crown's relationship with Aboriginal groups, which can be undermined by a lack of involvement of the Crown.

Federal departments and agencies differ in their approaches to this issue and there is currently no guidance on how best to exercise this oversight function. ^{Footnote 133} Guidance should be provided but it will depend on the nature of the issue subject to consultation, the issues that arise in the consultation itself, and the particular proponent's capacity for consultation, which should be assessed at the outset. It should, however, include monitoring the progress of the consultation, being available to help resolve any impasses, meeting with affected Aboriginal groups if necessary to discuss any issues that cannot be addressed by proponents or are outside of any applicable regulatory process, assessing and providing direction to proponents on the adequacy of consultation and any proposed accommodation measures, and how to bring consultation to a close when there continue to be disagreements between proponents and Aboriginal groups.

Improving internal oversight and coordination

One of the most commonly raised issues in the engagement was not the guidance itself but the implementation of the guidance by federal departments and agencies, or lack thereof. Aboriginal groups and industry frequently expressed frustration that every federal department and agency seems to have a different approach to consultation and that this approach is not always consistent even within departments. There are many factors contributing to this divergence, several of which have been previously addressed. ^{Footnote 134} This remaining section will focus on improving information sharing, oversight and coordination.

List of engagement participants

Consolidated list of recommendations

Ensuring meaningful consultation

Enhancing the capacity of aboriginal groups

30. Canada should implement a high-level central information management system for consultation activities of the federal government. This system should, at a minimum, contain all of the issues that a particular Aboriginal group has been or is being consulted on by federal departments and agencies, concerns that they raised in previous consultations, previous capacity funding, issues to flag for future consultation, and a contact name in the federal government for each previous consultation.
31. Federal departments and agencies should work to reduce capacity demands on Aboriginal communities, such as consolidating consultations on related issues, consulting on a suite of permits for a project at the same time, enhancing coordination with the provinces and territories, building confidence in federal regulatory processes, and establishing strategic high-level tables in areas of frequent consultation.
32. Indigenous and Northern Affairs Canada should enter into MOUs on consultation and accommodation with all provinces and territories on a priority basis and identify concrete joint priorities with each province and territory aimed at improving coordination and information-sharing in each jurisdiction supported by action plans and accountability measures to ensure meaningful progress.
33. Canada should work with provinces, territories and Aboriginal groups to identify consultation skills gaps in Aboriginal communities and develop or support targeted skills-training and apprenticeship activities aimed at increasing local capacity for consultation as well as improve access to federal government expertise.
34. Canada should work with the provinces, territories, and industry to promote a principled dialogue about resource development with Aboriginal communities. This dialogue should be aimed at improving knowledge about the energy, mining and other resource sectors and how Aboriginal traditional knowledge and participation can enhance environmental monitoring and stewardship for projects.
35. Canada should direct federal officials to consider at the outset of consultation whether capacity support (financial or in-kind) is necessary to ensure meaningful consultation and to consider capacity when determining the adequacy of consultation. Canada should also provide criteria to assist with determining whether to provide capacity assistance, the nature of that assistance as well a consistent approach to determining the quantum of any financial assistance.
36. Canada should provide additional guidance to industry on the reasons for and benefits of providing capacity support, the range of support that can be provided, and factors to consider and information to request in order to determine an appropriate quantum of any financial assistance. This guidance should also encourage proponents to have early discussions with Aboriginal groups to determine whether capacity support is needed, outline the reciprocal obligations of Aboriginal groups in making capacity requests, and indicate that any capacity barriers and reasonable efforts or offers to address these barriers will be considered in assessing the adequacy of consultation.
37. Canada should work with the provinces and territories to incentivize aggregation of Aboriginal groups for consultation and to ensure that all Aboriginal groups receive core capacity funding for consultation and that Canada contributes core capacity funding where there is a need and a certain threshold of federal consultation activity.
38. Canada should ensure that all departments and agencies that engage in consultation with Aboriginal groups have the authority to flow capacity funding and identify ways to streamline the application and reporting processes for federal participant funding and incentivize aggregation for this funding.

Consent and justification

39. Canada should clarify in the new guidance for federal officials and industry when it is necessary to obtain the consent of affected Aboriginal groups, from whom consent must be obtained, as well as provide best practices for achieving consent.
40. Canada should conduct substantial consultations with Aboriginal groups, industry and provincial and territorial governments to define what FPIC means, when it is required and what efforts are required to achieve it, what happens if FPIC is not achieved, how the justification defence applies in cases of infringement, and how the government will deal with conflicting positions of affected Aboriginal groups on proposed Crown conduct.
41. Canada should clarify in the new guidance for federal officials and industry that Canada has a duty to justify any infringements of established Aboriginal or treaty rights in the absence of consent and explain what constitutes an infringement in specific contexts, what is required to satisfy the justification test, and what additional steps should be taken in consultation and accommodation if there is the potential of an infringement.

Clarifying roles & improving internal federal oversight and coordination

42. Canada should explain in the new guidance for federal officials and industry which "procedural aspects" of the duty to consult that it may delegate to or rely on industry proponents for and what the federal government remains responsible for. Canada should also ensure any federal delegation to an individual proponent is in writing and specifies what the proponent is expected to do and what Canada remains responsible for.
43. Canada should clarify in the new guidance for federal officials and industry that federal departments and agencies are responsible for determining which Aboriginal groups need to be consulted on a particular decision once a federal regulatory process has been initiated and ensure that all departments and agencies take a consistent approach to the identification of potentially impacted Aboriginal groups through the development of common criteria.
44. Canada should establish mechanisms that enable proponents to get early direction on which Aboriginal groups need to be consulted for a particular project and work with provinces and territories to identify ways to minimize inconsistencies in the approaches to identifying potentially affected Aboriginal groups for consultation on particular projects.
45. Canada should provide guidance to federal officials on the need for federal oversight when relying upon or delegating procedural aspects of the duty to consult to industry proponents and how this oversight should be provided.
46. Federal departments and agencies should enhance senior oversight over consultation and accommodation within their respective mandates to ensure greater coordination of consultation activities, consistency in approach, and that Canada is meeting its legal obligations.
47. Canada should enhance central oversight and coordination on consultation and accommodation to ensure consistency in guidance and approaches, greater coordination of consultation activities, effective implementation of any changes to Canada's approach to consultation and accommodation, and that departments and agencies are discharging their consultation and accommodation obligations. This oversight should include a new or existing Deputy Ministers Committee focused on issues relating to consultation, accommodation and relationship building.