Real Talk: The Search for Clarity and Certainty in Aboriginal Consultation

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With project applications in Canada's extractive industries on the rise, the assertion of Aboriginal rights has brought the duty to consult to the forefront of public consciousness. The Crown is obligated by case law and the Constitution to consult with Aboriginal communities on any action that may affect their rights, treaty rights and title. While some steps have been taken to clarify the process of consultation, ambiguity concerning criteria, responsibilities and expectations persists, creating a great deal of uncertainty for proponents and Aboriginal groups who may benefit from resource projects. The revenues brought by resource developments are vital to Canadian economies, and the ability to strategically plan is central to their success. Uncertainty and inconsistent consultations serve to weaken plans and prolong poor relationships between the Crown and Aboriginal peoples. Moreover, variable consultative practices may be a source of inequality amongst different Aboriginal communities, as well as within them. The purpose of this project is to provide an analytical map of the ongoing areas of ambiguity and controversy with respect to the duty to consult. Such a consolidation of the issues and policy options does not exist, and this research aims to provide a systematic (as opposed to piecemeal) effort at clarifying this important but murky policy area. A series of general interviews were conducted with individuals involved in, or highly familiar with, Aboriginal consultation. Participants included a government official, a former council member of an Alberta First Nation, and several industry representatives. lnput was also sought from an industry association, an expert in Aboriginal Law, and an independent consultant. Findings from these interviews suggest there are significant problems surrounding consultation processes: the guidelines provided by provincial governments are vague, do little to elaborate on specific responsibilities of different parties, and - in their current form - may have the effect of creating a minimum standard of consultation; the Crown, while obliged to conduct consultations, delegates the procedural aspects of the process, creating misaligned expectations and inconsistent information flows; and insufficient Aboriginal capacity funding places extra demands on proponents for compensation, leading to ill-defined and problematic consultation fees. Three policy recommendations may alleviate these issues: I) the creation of a one window or single desk approach - akin to the BC Oil and Gas Commission's - to streamline processes and handle monetary exchanges; 2) the establishment of a fee schedule of negotiable fee allotment windows based on an assessment of the characteristics of the community and proposed project; and 3) greater Crown involvement in consultation and policy revision.
Apps, C. J. (2012). Real Talk: The Search for Clarity and Certainty in Aboriginal Consultation (Unpublished master's project). University of Calgary, Calgary, AB.