Blog post by Davis Legree

This blog won an award in the TBCG Environmental Advocates writing contest. All content, including any opinions expressed, belong to the author.

First – I am not a law student nor a recent graduate of a law school.

While I once had designs on a profession in litigation, my LSAT scores made my decision for me. As such, I’ve since turned my attention to the environment and, while I may not have a strong grasp on the legal concepts at play, I’ve become increasingly familiar with the engagement processes involved in environmental decision-making and it has become clear to me that this contest’s overarching question merits asking.

On the whole, community engagement as part of environmental decision-making is far too often inequitable. While 750 words is insufficient to fully explore the multitude of systemic changes required to guarantee universal equity, I’ve elected to narrow the scope and consider how community engagement may be amended to become more equitable for Indigenous peoples.

So often the victims of inadequate engagement, I’d like to make the case that one specific systemic change is required to facilitate equitable engagement with First Nations, Métis, and Inuit peoples.

It’s really rather simple – the bar is too low.

Currently, consultation is the standard. The federal government’s duty to consult has been affirmed by the Supreme Court of Canada on multiple occasions, which has resulted in the mere act of engagement being systemically mistaken for equitable consultation. This leaves a gap between consultation and consent, as the latter is not universally required when making environmental decisions that have the potential to impact Indigenous people.

Instead, if the federal government was truly committed to reconciliation, equitable community engagement would be required to achieve consent.

This is not a novel concept. The Truth and Reconciliation Commission listed “obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development projects” as one its 94 calls to action in its 2015 report.

Additionally, NDP MP Lori Idlout has tabled a private member’s bill that seeks to amend the Territorial Lands Act by requiring consent to be given earlier in the consultation process.

Idlout’s bill would require consent to be received from local Indigenous peoples before mining and resource development rights are sold. While this bill appears niche in nature, it has the potential to elevate the standard and bridge the gap between consultation and consent.

Now, a clear counter argument has arisen, and although it may be outside the scope of this contest’s guiding question, it nevertheless remains – how can we expect the government to adhere to a strengthened duty to achieve consent, when it routinely falls short of satisfying its duty to consult?

I would argue that elevating the standard of engagement from mere consultation to consent would produce other beneficial systemic changes, essentially forcing the government’s hand.

Obviously, universally changing the standard from consultation to consent for all stakeholder groups is pragmatically impossible, as, ultimately, decisions must be made, and a consensus can be difficult to obtain. However, Indigenous consultation is inherently different, as they should not be viewed as stakeholders, but rather an equal party in all decision-making processes.

Requiring consent and treating Indigenous peoples as an equal from which consent is required, rather than a stakeholder subordinated throughout the process, will force the government to view and interact with Indigenous peoples in a nation-to-nation manner.

While nation-to-nation relationships have long been emphasized by the federal government, since current consultation procedures do not require consent, it’s difficult to argue Indigenous peoples are anything other than a stakeholder group.

To further emphasize my point, if Canada were to pursue a resource development project in Germany, they would require consent from German leaders to move forward. In this hypothetical, consultation would not nearly be adequate enough in terms of engagement. Yet, the government maintains that, in dealing with Indigenous peoples, its duty to consult is unimpeachable.

Consequently, the systemic change I’m proposing would have ramifications that only serve to make Indigenous engagement more equitable.

True nation-to-nation negotiation is the most effective way at ensuring Indigenous peoples are able to consent to all environmentally relevant decision-making processes, and vice-versa.

Perhaps this systemic change extends beyond the realm of “environmental decision-making,” but I believe elevating the standard for sufficient engagement to consent would have a monumental impact on how resource development projects that occur on Indigenous land are pursued moving forward.

No longer would government or private interests take priority over local Indigenous populations, but rather Indigenous self-determination would be strengthened, and community engagement would epitomize equity, as it would occur in true partnership.