Development
May 7, 2012

The path to shared decision making

Looking at all the engineering diagrams overlaid on maps on the wall at the band office, I see a hand-drawn picture of a berm, a smiling moose cartoon on the pipeline, and an arrow beside it. “What does that represent?” I asked the engineering manager. “A moose lick,” he answered. “If we design and build knowing what will cause issues, we can tweak instead of re-designing.”

Consultation is about engaging individuals, groups and communities who could be affected by proposed development. The rationale to consult is by engaging those impacted; the decision-maker can improve the quality and durability of the decision and reduce the costs of implementation. In terms of Aboriginal people, one of the objectives of consultation and accommodation is to limit the impact that development projects have on Aboriginal rights or lands. As a consequence, both the process and outcomes of consultation and accommodation have a significant impact on the proponents of development projects, particularly those in the mining sector.

There have been numerous court decisions, draft guidelines and best practices established around how industry should consult with Canada’s Aboriginal People and still the consultation landscape in British Columbia is a patchwork of approaches, complicated by differing expectations and understandings by both industry and First Nations.

In November 2004, the Supreme Court of Canada ruled, in the Haida and Taku River cases, that the federal and provincial Crown has a duty to consult Aboriginal Peoples and to accommodate their concerns. The Court emphasized that this duty also applies before Aboriginal title or rights claims have been decided.

What does consultation look like?

The definition of what degree of consultation is adequate in any given situation has not yet been addressed definitively in law. This means that any project proponent who ultimately will be seeking a licence or permit from government, on the strength of consultations with First Nations, must address this as yet to be defined process requirement to consult. The current legal understanding is best defined in Haida Nation v British Columbia. “In general terms, [however], it may be asserted that the scope of the duty [to consult] is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”

So, proponents are still left to wonder: what does consultation with First Nations look like?

The mineral exploration and development industries in British Columbia have engaged First Nations differently and to different degrees, some with early communication and on-going community open houses, others with engagement later in the process and in keeping with provincial requirements as laid out by the British Columbia Environmental Assessment Office (BC EAO). This patchwork approach has resulted in mixed success, with no definable common thread, and has led to confusion and concern for all parties.

Defining the process
In B.C., as with most other provinces in Canada, consultation has been packaged with the environmental assessment process. This is inadequate to most in the industry because while there are guidelines, there is little by way of explicit direction on how consultation must take place. For industry, we need decision making that is predictable in terms of the requirements. Industry must know what activities are required and on what timeline. In effect, much of the current policy work on consultation is now about how to consult on the path to shared decision making between the Crown and B.C.’s Aboriginal People.

Shared decision making
Shared decision making between government and First Nations would go a long way towards developing a process that ensures First Nations are part of the process, instead of outside the process. There is plenty of evidence to demonstrate that, having acquired and developed the community institutions to support shared decision-making, First Nations are in a stronger position to facilitate clear and timely processes based on principles that are supported by their communities and understood by stakeholders in the decision-making process. This is good for business. Shared decision making models currently are being used effectively in the North West Territories with the Mackenzie Valley Environmental Impact Review Board.

Established in 1998, the Review Board is an independent administrative tribunal responsible for the environmental assessment process in the Mackenzie Valley. The Review Board was created as a result of land claim negotiations with the Tli Cho, the Gwich’in, and the Sahtu First Nations. The objective of the Review Board is to ensure the environmental impact assessment process provides an avenue for First Nations to participate in resource development and land management. The Review Board currently has eight board members, including the chairperson. First Nations nominate half of the board members, with the territorial and federal governments nominating the other half.

“The co-management system in the Mackenzie Valley, Northwest Territories has led to a greater understanding of the traditional knowledge brought forward during the environmental assessment process, as well as a better appreciation of the socio-economic and cultural concerns of both aboriginal and non-aboriginal residents in the Mackenzie Valley,” says Vern Christensen, executive director for the Review Board.  

While each province or territory will need to establish their own process to establishing shared decision making institutions, there are some best practices that have arisen from the Review Board’s ten year’s of experience. “The Review Board values its transparency, accessibility and openness of its process,” says Christensen. ‘We ensure good communication with the public about the process and schedule for each project and give the public access to our online public registry, where all the evidence about the ongoing environmental assessment is filed.”

The Review Board holds public hearings and meetings in the affected communities and encourages public participation throughout. “All of these things bring the process closer to the people affected and allow the Review Board to make better long-term decisions,” says Christensen.

Christensen says that following the creation of the Review Board, residents have had a greater say in resource management decisions that affect them. “The Review Board doesn’t just look at the impacts proposed developments have on the biophysical environment, like water and wildlife, it must also consider the impacts on people and their communities and culture. This means a much greater amount of public participation and input is required,” says Christensen.  

Shared decision making is not a new concept in B.C. As part of the New Relations with Aboriginal People, the government agreed to establish processes and institutions for shared decision making about lands and resources, as part of “the inherent right for community to make decisions as to the use of the land and therefore the right to have a political structure for making those decisions…” While it remains unclear what exactly shared decision making in BC will look like, many point to the Review Board as a successful model.

Engagement and capacity
Being fully engaged in the process is just one of the major challenges facing First Nations, as demonstrated by the case of the Tahltan Nation. The Tahltan Nation is located in and amongst the mountains of Mt Ediziza Provincial Park and the Spatsizi Plateau Wildern

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