By Krista Robertson, Woodward & Company, November 7, 2007   

Citation: Robertson, Krista, 2007. “Strategies For Consultation With Limited Capacity”. Vancouver: Ecotrust Canada & Aboriginal Mapping Network. November 7, 2007. Available online at the Aboriginal Mapping Network web site: http://www.nativemaps.org/?q=node/2906

 Introduction

A common experience of First Nations engaging with government and private companies about resource use decisions is a lack of adequate human and financial resources to fully participate.  This is a serious concern because First Nations have a strong interest in being able to be adequately involved in consultation.   Information that comes to light in the consultation process has important outcomes with respect to the government’s legal obligations to accommodate a First Nation’s Aboriginal rights. 

It has been less than a decade since the courts have begun to strongly enforce the government’s legal duty to consult and accommodate.  Although this enforcement is a positive development in the law, the reality is that within a short period of time, First Nations have experienced a significant increase in demands placed on their land and resource departments and their governments to process a very high volume of resource use ‘referrals’.[1]  Hopefully, First Nations’ capacity to meaningfully participate will continue to develop to meet to this increased demand.  Ideally, high-level government policy reform and funding programs, as well as First Nations’ economic growth and development through fair resource benefit sharing, will aid in the process.  However, there currently remains a problematic gap between the demands on First Nations to participate in consultation and accommodation processes to keep pace with development, and the limited resources available to do so.  This section of the toolkit does not provide a solution, but some strategies that may help to address this ongoing problem. 

1.  Make a Preliminary Response Requesting a Budget to Support Consultations

Before responding to the proposed decision in a substantial way, a First Nation might make a preliminary written response to the initial referral, expressing a wish to participate and setting out the costs of participating, with a request that the government and/or proponent contribute to the costs.  The letter may state, where applicable, that the First Nation has rights that may be impacted by the proposal, and that it has insufficient resources to adequately respond.  Funding support is more likely to be provided by government and private parties where the costs are clearly defined.  For example, the letter might set out: standard costs for travel if meetings take place outside the community, meeting room rates if the meetings take place in the community, hourly rates for land and resource department staff, cultural advisors, legal advisors, and costs of community meetings.  Some First Nations have a General Consultation Policy that can be attached to an initial response letter setting out such details and other expectations for the process, such as a communication protocols.  If the government and/or the company seeking approvals are willing to cover the costs of consultations, but require the First Nation to enter into a contribution agreement to receive the funds, the agreement should make it clear that acceptance of money does not indicate support for the project.  The purpose of a consultation funding contribution is to enable negotiation, and should not in any way pre-determine outcomes.

2.   A First Nation Should Not Refuse to Participate if Funding is Not Provided

In several cases, the courts have recognized participation funding for First Nations as one factor in determining that the government has met its duty to consult.  However, no court has gone so far as to declare that the government’s common law duty to consult includes a positive obligation to provide First Nations with participation funding.[2]  Further, the courts have generally held that consultation is a ‘two way street’ and that First Nations have a responsibility to participate in the process.  Therefore, a First Nation should be very cautious about making general declarations that it will not participate in consultations without funding, as this may compromise its legal position.  However, if capacity is an issue, First Nations should consider making it clear in writing that without proper funding, the ability to meaningfully engage in the process will be seriously compromised, which may result in an unjustified infringement of Aboriginal rights.  This will be important evidence if a First Nation seeks court intervention in a case where a consultation process has been seriously compromised by a lack of resources.

3. Refer the Government to Information that Has Already Been Provided in Previous Consultations or is Publicly Available

A First Nation may not need to provide the government with general information about its Aboriginal rights for every referral.  For example, if a First Nation is engaged in treaty negotiations, it may point to statements of intent and other information previously provided to the government and state that the government is aware, or should be aware, of the First Nation’s rights.  If a First Nation has provided traditional use studies, territorial maps, statements from elders or other information in other consultation processes with the government, it may be able to refer to these to avoid the time and expense of having to reproduce the same documents for a similar referral.  Further, a First Nation should strive to hold the government accountable to inform itself about the potential impacts of a decision.  General evidence of a First Nation’s rights may already be publicly available, such as historical documents, ethnographies, and archaeological reports.  In responding to a referral, a First Nation may first ask the government to identify what research it has done to assess whether or not a First Nation’s rights may be impacted.  This does not replace the First Nation’s obligation to provide more specific information where required, but it can save precious resources.

4.   If New Information is Required, Put the Ball in the Government’s Court

Wherever possible, a First Nation should put the onus on the government to provide required information to assess the impact of the proposal on its Aboriginal rights.  Naturally, some information will be known only by the First Nation; in such cases, the onus is on the First Nation to bring it forward.  It can be a matter of dispute whether the First Nation has the onus to demonstrate that the right would be infringed by the proposed activity, or whether the onus is on the government and/or proponent to demonstrate that activity will not have an adverse effect.  Often, the matter requires detailed study and scientific or other expertise.  If a First Nation does not have the resources to carry out this assessment, it should clearly communicate its concerns and assert that the government has an obligation in this regard.  For example, it may state that it has fisheries interests in or near a proposed project area, and request an assessment by a professional biologist on how the project might impact the fishery.  A First Nation should ensure that all requests for studies or other information are recorded, and insist on having a say in who does the study and how it is carried out, to ensure that the research is independent and properly thorough.  A First Nation will be in better legal position if it makes reasonable, direct requests for the information required to assess potential impacts, rather than simply stating it doesn’t have capacity to assess the impacts. 

5.  Time Extensions May Be Required

Referrals from government and companies may state that the First Nations must respond prior to a specified time, such as forty-five days from the date of the letter.  There is no legal basis for a government or private party to set a deadline for a First Nation’s response time, unless the First Nation has previously agreed to a timeline.  A First Nation should not hesitate to request more time if required.  A simple letter requesting more time should suffice.  Adequate time to respond cannot be unreasonably denied.   However, a First Nation should be aware that it cannot unreasonably frustrate the consultation process; therefore, excessive delay could work against a First Nation.  This is particularly true where further investment and approvals for a project may be advancing.   If a First Nation is aware that the project is advancing in the preliminary stages of consultation, it should put the government and the proponent on written notice that irreversible activity should cease pending consultation.

6. Seek Funding and Partnerships with Other Agencies to Boost Capacity

In addition to seeking contribution funding on a referral-by-referral basis, a First Nation should take steps wherever possible to develop its general capacity, such as full-time land and resource staff, office and field equipment and data.  Annual government funding programs may be helpful in this regard.  Collaborating with environmental organizations and other First Nations to share information and resources on a general or a project-by-project basis can also help a First Nation to build capacity.  In some cases, evidence of such efforts may be relevant in a judicial review to show that the First Nation made all efforts to participate in consultations.

7. Try to be Create Efficiencies Wherever Possible

The case studies section of this toolkit offers practical strategies from a number of First Nations for establishing efficient systems to process referrals.  However, even the best systems can break down due to sheer overload.  If a First Nation becomes aware that a response had been significantly delayed because it is simply ‘buried’ by other referrals and demands, it should communicate as soon as practical with the government advising of a backlog and an intention to respond at a later time.  If capacity is fundamentally strained, a First Nation may have to consider prioritizing responses to proposals that may have significant impacts over proposals that are unlikely to have an impact.  In these circumstances, if possible, a First Nation might consider sending a short letter stating that a lack of response should not be deemed to be consent to any impacts on Aboriginal rights.  The letter might also request notice of any developments or changes in the proposal, so at least the project can be monitored.

Conclusion

It is difficult to reconcile a First Nation’s right to meaningful participation in consultations about land and resource use with the fact that many First Nations lack enough resources to do so.  Firm recognition by the courts of the government’s legal duty to consult is a positive legal development to enhance protection of Aboriginal rights, but the volume, pace, and complexity of consultation processes First Nations are expected to participate in may come as yet another burden on a First Nation’s administration and government.   As all parties adjust to the new reality in that consultation is required for virtually every decision that may have an impact on Aboriginal rights, the situation will hopefully improve.  In cases where a lack of resources is a barrier to adequate participation, a First Nation should document the problem so both the government and the courts can be made aware of it.

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[Date]

[Name and address of person to whom you are writing]

Dear [name of person]:

Re: [name of project / initiative]

Identify the reason for writing your letter, for example:

I am writing on behalf of the [name of your First Nation] in response to your letter of [date] that we received on [date] to express our concerns about the proposal by [name of company / proponent] to [describe project / initiative].

Describe geographical link to your First Nation's territory, for example:

(1) [name of project / initiative] falls within our traditional territory as described in <the map provided to the BC Treaty Commission in our statement of intent> <the map of our traditional territory> <attached to this letter> <previously provided to the Crown>.

(2) [name of project / initiative] falls within < > our treaty lands as described in the map of our treaty lands attached to this letter.

(3) [name of project / initiative] <falls within><has the potential to impact> on our reserve lands which are located [describe location in relation to project / initiative].

(4) [name of project / initiative] <falls within> <has the potential to impact> on <our hunting areas> <our fishing sites / areas> <our trapping areas> <our berry-picking areas> <a sacred site / cultural area><our economic development areas>.

(5) [name of project / initiative] has the potential to impact on [describe any other land it will impact on and your First Nation's connection to it].

If you have stated that you have Aboriginal Rights and Title that may be affected, describe the general evidence that is available to support that conclusion, for example:

(1) Evidence from our elders provided through <interviews> <community meetings> <oral history projects> <traditional use and occupancy studies> confirms that we have always <lived in> <hunted / trapped / fished> <used> the area in question.

(2) <Archaeological> <anthropological> <ethnographic> <historical> <documentary> evidence confirms the advice provided to us by our elders. We expect that your department has informed itself of these studies.  Should you not have this information in your records, we are willing to develop a process with you to compile and exchange this information.

(3) [Describe any other evidence to support Aboriginal rights or title. Ideally, particular referral responses build on a platform of general information already provided to the Crown as formal notice of your asserted Aboriginal rights and title within your traditional territory.]

If you have stated that you have treaty rights that may be affected, describe the general evidence that is available to support that conclusion, for example:

(1) [Name / description of treaty] provides that we have treaty rights to [describe nature of rights and area to which they apply]. These rights are <set out in paragraph ___ of our treaty> <described in [name treaty-related documentation that confirms the treaty rights in question]>.

(2) [Refer to any other evidence you have to support treaty rights]

[Name of project / initiative] is of concern to us for the following reasons. [Describe activities related to the project / initiative and their potential impacts that are of concern (see Appendices for a list of such activities and impacts). With respect to each issue of concern, describe how it may affect your First Nation's rights and interests, such as:

• harvesting activities: such as harvesting of wildlife, birds, fish, shellfish, timber, non-timber forest resources (e.g. berries, mushrooms, roots, floral greens, other edible and medicinal plants) and trapping;

• traditional and community activities: such as cultural ceremonies, rediscovery and spiritual development camps, social and family gatherings and recreational activities;

• cultural sites: such as sacred sites, archaeological sites,

• commercial activities: such as commercial hunting, trapping, fishing, tourism (e.g. ecotourism);

• limiting or degrading lands subject to land claims

• potential for development of commercial activities;

• drinking water;

• other rights and interests.

Also note any issues related to access to carrying out such activities (e.g. access to harvesting areas, sacred sites).