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The C-Word: Consultation

The C-Word: Consultation

It’s confusing. It’s controversial. But for miners looking to develop the next mega-project or governments seeking public approval on big-ticket policies, consultation is crucial.
By Herb Mathisen
Sep 18
From the September 2015 Issue

Congratulations! Through good fortune and hard work, you find yourself sitting on a potential motherlode in a remote area of Canada’s North. You rush to drill out the gold resource to find out just what you’ve got so you can spread the news and start raising money. The drill results don’t disappoint and as your stock price starts climbing, so do your ambitions. You continue drilling to determine what your mineral deposit looks like to start conceptualizing your mine. One problem: the nearest community, whose residents hunt around your project, are frustrated that you haven’t filled them in with what you’re doing on the land they’ve used for millennia. There’s been a history of mines closing in the area with companies folding and walking away without cleaning up. People rightfully have questions. You compile your data and give a presentation at the community centre, talking jobs and reclamation, but it’s all very technical and poorly attended—you were told many community members would be out of town on a hunt, but you didn’t listen. You get a phone call from site and learn there’s been an altercation between some drillers and community members. The next call is from the media and you realize you’ve lost the trust of local landowners, your potential partners. The future of your mine is now very much in doubt.

This story is a hypothetical one, but it’s by no means unrealistic. These days, being able to communciate plans while leaving them open to change, and building local partnerships are equally as important as the mineral deposit a company is trying to develop. But consultation can be a scary word, because no one really agrees on its meaning. Depending where you are and what’s being proposed, it can constitute anything from a notice tacked up on a bulletin board, to a Power Point presentation, right up to full-scale nation-to-nation negotiations.

It’s not overstating things to say that consultation—or the conversation around what constitutes consultation—is the biggest contemporary issue in Canada. The country, and the North in particular, is resource dependent and there’s nothing mining and oil companies crave more than certainty. But the duties and expectations of governments and resource companies are shifting constantly based on each new court ruling that comes down. And with reconciliation between the Crown and aboriginal peoples in Canada finally becoming a national conversation, these discussions have the potential to reshape what this country might look like in the future.

Clarifying consultation: Big C vs. Small C

To begin, it helps to think of consultation in two different ways—as two separate terms. “As a government, there’s two categories for consultation: both of them legitimate, both of them really important,” says Martin Goldney, deputy minister of aboriginal affairs and intergovernmental relations with the Government of the Northwest Territories. Colloquially, they’re known as ‘small C’ and ‘Big C.’

‘Small C’ consultation: This is when a government is considering a policy and wants public input. “[It’s a] matter of good governance and just making sure that government decision-makers are informed of what public concerns are around whatever initiative is being considered,” says Goldney. It’s like a landlord asking tenants their opinion on some tree she’s considering cutting down on the property. Some responses might be enthusiastically positive, some might suggest pruning or trimming, others might like things just the way they are. In the end, it’s still her place, and she can do whatever she likes. And if the tenants don’t like it, they can vote with their feet.

‘Big C’ consultation: This is the Crown’s duty to consult with First Nations on any development or decision that could interfere on its aboriginal or treaty rights. (This could include anything from impacts on, for instance, the right to harvest caribou, to whether an action conforms to a land use plan developed by a First Nation with a modern land claim agreement.) Often, that means doing more than a public presentation. “It will require direct engagement with potentially affected aboriginal rights holders,” says Goldney. “We could be subject to review by the courts if we get that wrong.” But the depth of consultation that is legally required depends on several factors—like an asserted right by a First Nation with “unproven” territorial claims versus an established right by a First Nation with a settled land claim, or the scale of the development being proposed.

Evolution of duty to consult: For some background, when Prime Minister Pierre Elliott Trudeau’s government enacted the Constitution Act in 1982, aboriginal and treaty rights of Canada’s first peoples were recognized and affirmed. And ever since, the definition of those rights, the duty to consult and the relationship between the Crown and First Nations have slowly become clearer, mostly through long, tedious appeals processes and court decisions. “Aboriginal law is the fastest-changing area of law in Canada,” says Doug Eyford, who has been working with Tsimshian communities around Prince Rupert, B.C., since the mid-1990s. “The change in aboriginal law over the course of the time I’ve been practicing law has been quite remarkable.” A little more than 10 years ago, a pair of Supreme Court decisions further clarified that the Crown—meaning any of the federal, provincial or territorial governments holding Crown land—has an obligation to consult with First Nations and accommodate (basically, address concerns) when a development or decision might negatively affect aboriginal and treaty rights.

Do you see where this is going? When I spoke to Bill Erasmus, Dene National chief, he forwarded a recent decision that had just come out in July. British Columbia had tried to consult with the Kwakiutl First Nation, on Vancouver Island, on a forest stewardship plan, but the First Nation refused, insisting instead on engaging in larger discussions about its aboriginal rights to land the province considered extinguished. After taking the province to court and following many appeals, the B.C. Court of Appeals—the highest court in the province—found the province had breached its duty to consult by offering too narrow a discussion and not taking the First Nation’s larger claim seriously.

Though the predecessors of the Kwakiutl First Nation signed a treaty in 1851 with a Hudson’s Bay Company agent who wanted to mine coal on that land, the court found that this did not necessarily mean the First Nation extinguished its title to the land. In the 1970s, the Dene in the NWT faced a similar challenge: Canada considered Treaties 8 and 11—signed in 1899 and 1921 respectively, and covering much of Northern Alberta and the NWT—as extinguishment agreements. A group of Dene chiefs successfully argued that signatories of the treaties didn’t think they were extinguishing aboriginal title, but instead entering a partnership. That has paved the way for the modern land claim settlements and negotiations in the territory, Erasmus says. “The whole thing is that no longer can a government just draw up a plan and expect to put it into force without having proper discussions, meetings,” says Erasmus. “It’s more than just putting an ad in the paper and doing something.”

Now, whenever a new ruling comes out in a province or territory, the rest of the country takes notice. In 2012, the Yukon Supreme Court ruled in favour of the Ross River Dena Council, requiring the territorial government to consult the First Nation before opening up any of its asserted land for mineral staking. The Yukon overhauled its mineral exploration rules as result. That was just on the heels of Ontario essentially ending the free-entry model by requiring prospectors to submit
exploration plans to the government, which notified First Nations ahead of any work, allowing them to ask questions and suggest conditions.

Whose duty to consult is it? It’s the government’s responsibility. The Supreme Court of Canada ruled in 2004 that governments can’t offload the duty to consult to industry, though they can delegate some of the procedural functions.

But the government might be relying too heavily on the environmental assessment process to satisfy its duty to consult. That’s according to a 2013 report by Eyford, titled Forging Partnerships, Building Relationships, produced at the Prime Minister’s request in light of pending infrastructure mega-projects in Western Canada. It’s worked so far, he says.  “There are federal officials that say that when they’ve offered a regulatory process for First Nations communities to address their issues, the courts have always found that’s been an adequate way to discharge their duty,” says Eyford. “That’s fine, the government is trying to inoculate itself against a legal claim that it failed to consult, but it doesn’t really build the kind of relationship that you need to be able to sustain a First Nation’s support for a project.”

It’s not so easy for First Nations: Depending on how resource-endowed its land is, First Nations can be presented with big-time capacity issues. Eyford notes a “consultation fatigue” among some of the First Nations governments he spoke to in B.C.

Allison Rippin Armstrong, the vice-president of land and environment for Kaminak Gold in the Yukon, worked for the Dene Nation back in the 1990s and witnessed this first hand. “I would see all of the land use applications coming in and I was floored by the volume and the tight timelines around getting this information back,” she says. “Working as the industry person [now], those timelines are really important, because it is a publicly traded company and the money has to be spent by a certain amount of time. If you don’t get to do the work, it can sometimes mean the company doesn’t exist the next year. But when you’re the First Nation and you’re trying to review this volume coming in, it’s overwhelming.” Rippin Armstrong says everyone empathizes with the territories’ regulatory boards when they say they’re swamped, “but people don’t extend that same courtesy of being understanding to the aboriginal organizations saying that.”

When an elaborate, highly technical, volumes-long plan comes in, Erasmus says it takes specialized personnel to ensure the document is treated fairly and due diligence is done. “First Nations just don’t have the financing or the capacity or resources to do the kinds of studies that they need to determine whether they support something or not.”

Industry has issues too: Consider a company that’s trying to develop a project on land where there are two aboriginal land claims that overlap. “It’s impossible for ... the project proponent to be able to tease out who has the strongest claim and who they should deal with,” says Eyford. “I think governments have a need to get involved with those discussions.”

“When you have First Nations that want to settle a land claim or want to enter into a relationship … that speaks to how work will be conducted on their lands, and when you’ve got governments that are ignoring that, it’s incredibly difficult,” says Rippin Armstrong. “That’s not an industry-First Nations issue. That’s a government-to-government issue.”

Consultation gone good: It’s like dating, says Rippin Armstrong. Imagine she’s on a first date with her now-husband. Instead of the light getting-to-know-you conversation they’d shared, she instead spells out their future in frightening detail: she wants to pursue a career where she travels a lot but doesn’t make much money, they’re going to have three kids and she wants to own horses. “I guarantee you he would have lost my phone number on the way home,” she says. Yet exploration companies tend to fly into a community and dump a ton of information on people they barely know. “They leave the community and say, ‘We had consultation tonight’ and the community is left sitting there going, ‘What the hell was that? What were they talking about?’”

Her company, Kaminak Gold, has tried not to come on too strong with its Coffee Gold project, south of Dawson City. The project is located on Tr’ondëk Hwëch’in land and part of the claim block is on Selkirk First Nation land—both First Nations have settled land claims. When Kaminak picked up the property in 2009, company reps introduced themselves to the community, and when it sought to expand its claim block in 2010, they asked both First Nations if there were any culturally sensitive or significant areas they should avoid. “We were made aware of some potential gravesites,” says Rippin Armstrong. “So our claim block is shaped the way it is because we avoided the specific areas that they alerted us to.” Since then, Kaminak has kept both First Nations in the loop, while hiring and training local environmental monitors; and partnering with Yukon College to develop environmental monitoring programs that are transferrable to other industries. “It wasn’t like we went in, in 2009, and created unrealistic expectations. We’ve shown that it’s stage-applicable. As our program has grown, so have the opportunities,” she says.

“We recognize that we are invited and we are temporary guests on this land,” she says. “We don’t even know if we’re going to build a mine yet. But we’ve made sure that the experience of having Kaminak in Tr’ondëk Hwëch’in’s backyard is a good experience.” And if the mine does get built? Well, there’s support from Tr’ondëk Hwëch’in because they’ve been part of the project since the start.

Consultation gone bad: When consultation goes bad, it usually goes to court. You’ve probably read about the community of Clyde River, Nunavut, taking the National Energy Board to court to overrule a decision allowing seismic testing in Baffin Bay. The company that was set to conduct the testing—Mayor Jerry Natanine makes a point of referring to it as “seismic cannon blasting”—has pulled its plans this summer. But did it have to be like this? Natanine says the community was initially excited about the potential for oil and gas development, but after a group of experts flew in to explain the plans, questions about the effects on narwhals, walruses and fish lingered. When community members posed those questions later, they weren’t satisfied with the answers they got and the relationship soured. “They were thinking they have all these plans of doing this thing, they’re going to come in, explain to the people how they’re going to do it … and then go out and do it,” says Natanine. “That was their attitude.” The NEB and the company didn’t attempt to get their consent on the project, he says. This raises another important question about the duty to consult—where does consent come in? (UPDATE: The federal court of appeals ruled August 18, 2015 that the National Energy Board's process "afforded meaningful consultation" and "a reasonable degree of accommodation" to the applicants' concerns, also noting that duty to consult does not mean a veto or a duty to agree. Brought further to the country's highest court, on July 26, 2017 the Supreme Court of Canada ruled the National Energy Board failed to properly consult the community and, on those grounds, overturned its approval of seismic testic in Baffin Bay.)

What’s in the future?: The feds are consulting First Nations, governments and industry to figure out some more concrete protocols. Eyford thinks it will still be some time—maybe even another 20 years—before everyone involved has the experience, through trial and error, to make things go smoother. 

But meaningful consultation comes down to common sense. “There are some fundamental themes: respect, transparency, honesty,” says Rippin Armstrong. As simple as it sounds, it’s about building trust; like any other relationship in life, that takes work. “Sometimes I get a little ahead of myself and suddenly I’ll get an email from a First Nation that says, ‘Wow, we never agreed to that.’ And I say, ‘Sorry.’” They go back to where they were both on the same page. “And we start again.”