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Oct 2018 | Indigenous-Municipal Partnerships

THE SPACE BETWEEN: THE BENEFITS OF A PRE-ENGAGEMENT CONSULTATION MODEL
DR. JULIE KAPYRKA, CURVE LAKE FIRST NATION

Currently we find ourselves within a new and emerging paradigm that is defining consultation processes within and between various levels of governments and the procedural aspect as it relates to First Nations. Today’s consultation and engagement landscape is very different than it was in the past. This new paradigm places a great focus on Indigenous rights, the economy, and an emerging idea of resource sharing and impact benefit agreements. These are both challenging and exciting times for First Nations, governments, and proponents – and the future has yet to be determined in terms of how the new paradigm will prescribe the nature of the new relationships that will emerge.

 

“The lack of clarity and guidance from the Provincial Government in terms of which level of government owes the duty to consult and accommodate is currently one of the greatest challenges not only for Indigenous governments and communities, but also for ministries and proponents of all kinds as they navigate through the process of the duty to consult.”

 

However, one thing is certain within this emerging paradigm: proponents of all sectors must engage in consultation with Indigenous communities when projects have the potential to impact Aboriginal and Treaty rights.

The following discussion speaks to a methodology, it speaks to behaviours, it speaks to how to engage and consult with First Nations respectfully, appropriately, and to the benefit of all stakeholders. And this methodology could not be simpler: engage in consultation processes as early as possible – and then start the process even before that.

 

I. A Pre-Engagement Consultation Model

 

The most successful projects that I have been involved with all had one thing in common: the proponents listened to what First Nations were saying and then acted upon it. Through this kind of process, meaningful consultation is achieved through relationship building and through mutually beneficial outcomes. When relationships are created and positive and supportive atmospheres are generated, projects and developments unfold more smoothly and more on-schedule, and opportunities for partnerships and investments can be explored. When Indigenous rights and interests are acknowledged and upheld within the consultation process, proponents are able to navigate through the development planning process much more expeditiously.

To achieve this, proponents must engage with First Nations as early on as possible in the process of any project that would later require engagement and consultation anyways. In this way, the project is able to meet this standard on an earlier and ongoing basis, thus the later stages of the planning process in which consultation must occur have already been fulfilled. More importantly by this stage, strong relationships have been formed and this not only strengthens the ability of the group to meet challenges and problems more effectively but also supports an increase in the potential for future collaboration on various other projects.

It is a myth that First Nations are anti-development and that to engage early on is seen as a series of possible delays in the project. This is simply not true. Rather it is the complete opposite. It is when the Crown and/or delegated proponents wait too long before engaging in the duty to consult that delays can occur. First Nations are not anti-development, but rather embrace development projects that are inclusive and that would support healthy sustainable communities now and into the future.

The most successful projects are those where information is shared at the earliest stages and relationships are built before and during the more formal process of consultation. More often than not, Indigenous communities are consulted after-the-fact, meaning plans and projects have already been approved before consultation begins. And, in some situations, “consultation” occurs after the development of the actual project has commenced. In cases such as these, proponents ultimately end up delaying their own development objectives because they did not do the appropriate work up front and in some cases the outcome is a negative irreversible impact on Aboriginal and Treaty rights, ultimately resulting in litigation before courts of law.

Land-use planning and subsequent development will always have the capacity to impact Aboriginal and Treaty rights because Indigenous Peoples have the constitutional right to hunt, trap, gather, and harvest within their traditional and treaty territories. And, in many cases, Indigenous nations never relinquished the rights to any bodies of water within their territories.

This means that any and all development projects and proposals upon the lands and waters of all municipalities in Ontario are subject to Indigenous rights and interests.

 

II. Terminology

 

A few points on terminology must be highlighted. First, the duty to consult and accommodate is not to be confused with engagement and consultation. These are two very separate things. The duty to consult and accommodate is the honour of the Crown as it pertains to Aboriginal and Treaty Rights protected under Section 35 of the Constitution. Consultation/engagement describes a process of interaction – used by proponents and many municipalities to inform and include the public, stakeholders, and interest groups in development projects and initiatives. Constitutionally protected rights are on a whole other level. The duty to consult and accommodate by the honour of the Crown is not the same as engagement and consultation with interest groups or stakeholders.

Second, Indigenous nations are not to be confused with “stakeholders” or “interest groups.” This needs to be corrected: Indigenous nations are rights holders, not stakeholders. Indigenous peoples are the original inhabitants of what we now call Ontario and hold special legal and spiritual relationships to these lands and waters. These rights are embedded in the Constitution and as such Indigenous Peoples have the ability to launch legal action to protect their constitutionally protected rights. This can put large projects at risk and can mandate proponents and governments to conduct additional engagement. This is why Indigenous engagement is not to be considered stakeholder engagement.

Third, the soft wording of various government policies that use terms such as “recommend, encourage, and should” when referring to early engagement processes with First Nations negate the importance of the process of engagement. Because of the less than compulsory directives, engagement often does not happen early on enough in the process. The words describing directions for early engagement should be: “require, mandate, and must.”              

 

III. The Duty to Consult and Accommodate

 

While the focus largely tends to be on the phrase: “the duty to consult,” often times the “and accommodate” is left out of the process. The full directive is: The duty to consult and accommodate. It is within the context of the accommodation component of the honour of the Crown when it comes to the duty to consult that presents some challenges.

Although the duty to consult seems to be actively engaged in many situations, it is still struggling through the process, policy, and procedural aspects in terms of when it is triggered, who will engage the duty, how to proceed, how to interpret feedback, and then how to integrate that into decision making and development and/or policy making. The confusion surrounding the implementation of the duty to consult alone serves as a barrier, resulting in accommodation becoming lost in the process or not even considered.

This seems to be current practice when the Crown or Crown agencies consult Indigenous nations. Unfortunately, what this effectively does is send the signal that the consultation effort is nothing more than a simple ticking off of a box. If there has been no accommodation, and no sincere effort to negotiate, then the consultation is not meaningful and the duty has not been fulfilled.

 

IV. The Jurisdictional Quagmire

 

The process of the duty to consult and accommodate can also become severely impaired in terms of what I call “the jurisdictional quagmire.” This is when the Crown explains it cannot accommodate the First Nation’s terms because it does not have a process or the policy mechanisms in place to do so. Subsequently, First Nations are bounced back and forth between provincial ministries who do not have the connective channels available amongst themselves to address the concerns that are being presented. Meanwhile, Aboriginal and Treaty rights – constitutionally protected rights – are being impacted, and thus the duty to consult and accommodate is rendered ineffectual.

Further added to the quagmire is the mystery surrounding the responsibilities of municipalities who are the approval authorities for development activities within their boundaries. Are municipalities serving as agents of the Crown? Municipalities are often referred to as “creatures of the province” and that the province is a creature of the Crown. What are the legal duties and responsibilities of these creatures? The lack of clarity and guidance from the Provincial Government in terms of which level of government owes the duty to consult and accommodate is currently one of the greatest challenges not only for Indigenous governments and communities, but also for ministries and proponents of all kinds as they navigate through the process of the duty to consult.

The current context of the duty to consult and accommodate is characterized by regulatory bodies working in silos, separated from each other, seemingly working in isolation from one-another, missing pertinent information required to oversee and enforce policy. The entire process becomes hindered and ultimately the duty to consult and accommodate cannot effectively be achieved.

It is a provincial jurisdiction quagmire, causing Aboriginal and Treaty rights of the First Nations to be negatively impacted and in some cases violated. Ironically, the very consultation process that is supposed to protect constitutional rights is, in many cases, ineffective in doing so.             

 

V. Worldview Differences

 

Added to this multi-component jurisdictional quagmire are the sometimes diametrically opposed worldviews of Indigenous and non-Indigenous systems of knowledge. Systems of knowledge, also known as ontologies, are integral to the process of meaningful consultation. While much of the world operates within a Western ontological model – one defined by capitalism, consumption, mass scale resource extraction, currency, and Western science – Indigenous ontological perspectives and methodologies drive decision making within the duty to consult process, such as supporting the health of the lands/waters and of the people into the future seven generations as well as supporting the maintenance of protected constitutional rights to do so. Without an understanding of Indigenous perspectives and worldviews and without understanding what is valued through an Indigenous ontological lens, meaningful dialogue and meaningful consultation cannot be achieved.

For example, when proponents and ministries are engaged with consulting Indigenous Elders, Knowledge Keepers, and community members about various projects, they are not only responsible for receiving and recording input and feedback, but they are also responsible for interpreting, analyzing, and transforming that information into data which is then applied to policy documents and or impact benefit agreements. For the document and/or agreement to be truly equitable, the ontological perspectives (the values) of both the First Nations and the proponents involved in duty to consult processes must be engaged and supported. More often than not, the ontological perspective (worldview) of developers and municipalities is upheld and supported and the worldviews of Indigenous communities are compromised. This is mostly due to the fact that the perspectives, worldviews, and realities of Indigenous peoples and communities are poorly understood in general and thereby cannot be adequately supported within most development contexts.

Consultation must not only occur as early on as possible in the process, but it must also be meaningful. Consultation means nothing if Indigenous communities cannot affect the potential outcomes of what is being proposed. If the input and concerns of Indigenous communities are not addressed and incorporated into project designs and implementation, the entire process is meaningless and a waste of everybody’s time. Being able to affect the outcome of projects enables the accommodation part of the duty to consult. The consultation process then becomes relative to all concerned and more meaningful an imperative element for successful outcomes.

 

 

Vi. Relationship Building

“Indigenous and Western knowledge systems will consistently fail to unite on various issues, and that is okay. To fully realize the benefits of the Space Between, we must be ready to clash at times, we must be ready to meet tough challenges, but with the firm understanding that the space of difference allows for the creation of something that is mutually beneficial to everyone.”

 

The importance of a Pre-engagement Consultation Model within the duty to consult and accommodate framework cannot be stressed enough. This is especially true in light of the emerging paradigm of Indigenous constitutional rights and interests. The Model is based upon early engagement and relationship building. It is only through relationship building that we gain an understanding of what different communities’ value, and only then can those values be recognized, respected, and protected in the development process. It is also through relationship building that mutual learning occurs – learning that is reciprocal, enabling more comprehensive understandings of each other’s perspectives and opportunities for consensus building.

Relationship building is the key – it drives the entire framework of meaningful dialogue and engagement, thus enabling the potential for a more successful duty to consult and accommodate process – which ultimately means protection of Indigenous rights to their lands.

Relationship building between First Nations and various Crown agencies and other proponents is in and of itself a commitment of dedication. However, the process is often mired in positions of opposition which is a direct result of the differences in ontological perspectives (worldviews). This is when worldviews collide: there is a clashing of values and beliefs between diverse cultures and peoples. How are relationships built within this tension?

That was a fundamental question that drove my doctoral research for years. I found myself one day on the banks of a beautiful lake with a Cree Elder. I lamented this colliding of worldviews and truly questioned why it had to be so. The Elder directed my attention to the lake, and the water gently splashing against the shore. He noted that the water and the land are two vastly different bodies, each with their own attributes and elements, and that where they come together is a place of power, a place of convergence, and a place that can be a clashing of entities. He said that this space can be both calm and beautiful and at times clashing and volatile. He continued by saying that the coming together of earth and water is a necessary and fundamental process for life to occur.

I thought about that for a long time. And I came to understand the power of what I have come to know as: The Space Between – what it means, what potential lies there, and its many applications.

 

VII. The Space Between

 

I started by thinking about this space physically: the area where water meets land and what is in that space. The clashing and the colliding of two different elements in the world creates something new, something distinct – it creates unique conditions of geology, it creates a unique condition of flora and fauna often times found nowhere else in the world. It essentially creates beaches, shores, and coastlines. What is ultimately created is an ecozone unto itself: a unique and diverse environment created from the coming together of difference.

This concept can be applied to the engagement and consultation process, in situations when Indigenous knowledge systems and Western knowledge systems are seemingly in opposition. What can be found in this tension? What can be found in this place of convergence? What can be created through difference?

Indigenous and Western knowledge systems will consistently fail to unite on various issues, and that is okay. To fully realize the benefits of the Space Between, we must be ready to clash at times, we must be ready to meet tough challenges, but with the firm understanding that the space of difference allows for the creation of something that is mutually beneficial to everyone.

So, if we look at the Space Between as a place of potential, uniqueness, and the creation of something new, and if we acknowledge and respect both Indigenous and Western ontologies, a new paradigm can be developed.

Creating a new methodology for consultation and engagement under this paradigm can be characterized as what I self-defined as C3-5R Consultation. In summary: 1) It is Constructive – it builds something, it is tangible, and it is deliverable; 2) It is Collaborative – it is inclusive, it is equitable, and includes partnerships; and 3) It is Compatible – it holds respect for the values of both Indigenous and Western perspectives and is inherently accommodating as it is mutually beneficial. Finally, it must operate from an understanding and an investment in the 5 R’s: Relationships, Reciprocity, Respect, Responsibility, and Reconciliation. If relationships are built early on in the development of the project through the lens of respect, reciprocity, responsibility, and reconciliation, and with constructive, collaborative, and compatible processes, First Nations and proponents stand to create their own new policy and procedures.

Engaging and investing in this way inherently puts you within the framework of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and within the framework of the Truth and Reconciliation Commission (TRC).

If we engage and invest in a C3-5R consultation methodology – if we embrace the tension, the clashes and collision, and see where it takes us within the context of municipal planning and resource development we have the opportunity to create something entirely new and unique. Within the milieu of economic development through the lands and resources, if we work from the Space Between, then our consultation models will have the potential to promote healthy and sustainable communities well into the future. And remember, if there is not a healthy sustainable environment, then there is not a place to exercise Aboriginal and Treaty rights. Healthy environments, waters and lands, are synonymous with Aboriginal and Treaty rights.

 

VIII. Final Thoughts

 

Although the current emerging paradigm within the consultation and engagement arena can seem so very complex and challenging to proponents, governments and First Nations communities, and at times seemingly insurmountable, my advice is to simplify: engage early.

 

JULIE KAPYRKA works as a Lands and Resources Consultation Officer for Curve Lake First Nation. Julie completed a B.A. Hons. and master’s degree in Archaeology/Anthropology which led to a PhD in Indigenous Studies. Dr. Kapyrka has developed several curricula and instructed for Trent University in the Indigenous Environmental Studies Program and at Fleming College in the Ecological Restoration Program. She has worked in the field of archaeology, cultural resource management, environmental education, and First Nations Treaty and Aboriginal rights for over 15 years. Working from within what she calls “the Space Between,” Julie focuses on the relationship between Indigenous and Western knowledge systems and highlights the strengths of using both when addressing the protection of lands and waters within a development context and consultation framework.