Opinion

‘Duty to Consult’ a Cruel Joke If First Nations Can’t Handle the Load

Insider reveals hidden barrier to fair dealing with Indigenous governments about big-ticket projects.

By Alex Power 16 Jan 2017 | Edge Magazine

Alex Power is a Regulatory and Research Specialist with the Yellowknives Dene First Nation. He wrote a version of this article for Edge, where it first appeared.

Whenever there’s a large project in Canada, whether it’s a new mine or major infrastructure, there’s a constitutionally based “duty to consult” with affected Indigenous parties. In the Northwest Territories, where I live, the regulatory boards have done a pretty good job of making sure that consultation is rigorous and that developers and governments fully engage with Indigenous governments.

Ironically, this rigour has led to a situation where meaningful consultation doesn’t currently exist. It’s a problem I know first-hand and one that is too common across the country.

How did this happen?

There are a couple of technical bits to this “duty to consult” that need to be understood. Given that my somewhat long-winded job title is Regulatory and Research Specialist for the Yellowknives Dene First Nation Department of Land and Environment, this is the sort of thing I think about daily.

First, the duty lies with “the Crown” — or as everyone who’s not a lawyer calls them, “the Feds.” This duty is entrenched in the Constitution, so there’s no way around it.

Second, the duty can be delegated to an authority such as a province or an appropriate regulatory board. In the Northwest Territories, much of this consultation is mediated by regulatory boards such as the Mackenzie Valley Land and Water Board.

Finally, the requirement for consultation is proportional to the impact of the project; i.e., massive projects require massive consultation. Think diamond mines.

Many readers will be familiar with the environmental assessments (EAs) that accompany large projects. Those EAs generate thousands of pages of technical material. This is perhaps unsurprising, considering the scale and complexity of these projects. Developers must employ teams of scientists and engineers who work for months to develop reports detailing engineering plans, water chemistry, geology, air quality, and wildlife-habitat impacts. There are also reports on the potential socio-economic consequences of projects on communities, particularly Indigenous communities.

Throughout an EA, First Nations (and other proponents) have an opportunity to review and critique the reports submitted by the developer. Proponents make information requests, review evidence, and make written submissions culminating in a multi-day public hearing. The process is rigorous.

The problem is, Indigenous groups don’t have the resources to properly review much of this material. Again, this process generates thousands of pages of reports spanning multiple disciplines in science, engineering, and socio-economics. If they’re lucky, a community might have one staff member (like myself) charged with reviewing and responding to all environmental assessments, water licenses, land-use permits, wildlife regulations, and conservation plans.

In short, there’s no possible way for an Indigenous government to provide thorough responses to even a small proportion of attempts at consultation.

Cure or curse?

An analogy can be drawn to informed consent in medicine. Doctors can’t just open you up and start pulling out organs willy-nilly. First they have to receive informed consent; your doctor must ensure you know what a treatment is, and what the potential risks are. Unsurprisingly, this is the result of shocking things that were done without consent in the past.

The current Indigenous consultation process is akin to asking your doctor about a treatment and having them respond by giving you a 5,000-page pile of research papers and clinical trial results. This would be… problematic. You can’t really consent if you don’t know what you’re agreeing to.

If an Indigenous government has no hope of wading through the deluge of technical reports it can’t really have been consulted.

One set of tools at Indigenous governments’ disposal are the independent oversight bodies. Examples include the Environmental Monitoring Advisory Board (EMAB) and the Independent Environmental Monitoring Agency (IEMA). These oversight bodies are meant to provide independent insight into the reams of data and reports. A lot of good work has come out of these oversight bodies — but they don’t fill all the gaps.

The oversight bodies do not speak directly for Indigenous governments and they certainly don’t serve as a proxy for consultation. What’s more, there has been a pattern of the GNWT approving funding cuts to these oversight bodies, on the recommendation of the very developers the bodies are supposed to be watching. If these oversight groups are underfunded, how can they be expected to provide meaningful oversight?

Towards a solution

So what’s an Indigenous government to do?

Often, the only choice is to try and pick an area of particular concern and hope that nothing important falls through the cracks.

So what’s the fix? In short, it’s money. I know that nobody wants to hear this, but there it is. Maybe the Internet, or social media (or whatever) has trained us to think there’s some pseudo-obvious, simple-and-elegant solution to hard problems like this. But there isn’t. Crowd-sourcing, or starting some sort of consultation Wiki-page can’t solve this. We can’t pin this problem on millennials and selfie-sticks. Indigenous governments need the resources to respond to these pressures. Period.

Here is where people who know me might point out my bias. As an employee of the Yellowknives Dene First Nation, my argument might seem self-serving. The thing is, the problem I’m describing isn’t unique to the Yellowknives. This is a challenge faced by Indigenous governments across Canada.

The simple fact is First Nations have an inordinate number of pressures to respond to on their territory and few resources to do it with. This is particularly true in regions with unsettled land claims, as is the case throughout B.C. as well as the Northwest Territories (example: the Akaitcho Treaty 8 regions).

Proponents can’t stop providing this information because it’s important. It’s important for all northerners to have access to this information. It’s important to demonstrate due diligence in the process. Nobody wants another toxic Giant Mine site or another Mount Polley disaster.

What’s needed is stable funding for hiring staff who can put a real dent in this work. Currently, much of the money that goes to First Nations to meet these types of regulatory and resource challenges comes in small allotments for specific projects. A few thousand here, a few more thousand there. You can’t hire staff with this sort of funding.

Instead, the money goes to consultants. My experience in the Northwest Territories tells me consultants usually do perfectly good work; however, the result is there is no legacy within the organization. The consultants come in, do the work, and leave. Often, they don’t even live in the territory. Not only does this not serve the interest of the First Nation government, but it’s a disservice to the North in general.

It took legal challenges to have the duty to consult and accommodate Indigenous peoples recognized in the Constitution. The Supreme Court of Canada tells us the purpose of these consultations is to advance reconciliation for historic wrongs against Indigenous Canadians.

If governments, both territorial and federal, are serious about their duty to consult and their commitment towards reconciliation, they’re going to have to address the real lack of resources facing Indigenous communities to scrutinize development projects. Maybe it will take the Supreme Court of Canada again to move governments in this direction.  [Tyee]

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