Western Canadian Approaches to Aboriginal Consultation: A Comparative Analysis

• Main Author: Anderson, Adam
• Format: Article in Journal/Newspaper
• Language: unknown
• Published: Faculty of Graduate Studies 2015
• Subjects: British Columbia; Canada; Taku; Taku River; First Nations
• Online Access: https://dx.doi.org/10.11575/prism/30072; https://prism.ucalgary.ca/handle/1880/51655

Supreme Court cases Haida, Taku River, and Mikisew Cree established the duty to consult’s modern form. In these cases, the Supreme Court ruled that the crown has, “a duty to consult and, where appropriate, accommodate when the crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights.”2 Reacting to the Supreme Court’s rulings, each jurisdiction in Canada has created their own approach to consultation. All of these provincial approaches to consultation have similar fundamental qualities and phases such as: preengagement and assessment, engagement and consultation, accommodation if required, and a decision on adequacy. While there are similarities in each provinces’ approach to consultation, there are significant differences. There are major differences in aspects of consultation in categories such as timeliness, flexibility, transparency, capacity funding, and others. Ranking provincial consultation policies, according to these criteria, has allowed for particular conclusions to be developed. The cumulative rankings have shown that while Alberta’s policy might be considered the ‘best’ policy from an industry perspective, British Columbia has the ‘best’ policy from the perspective of First Nations. These rankings are not meant to be scientific, but rather to provide insight into the intricate and sometimes overlooked unique aspects of each provinces’ approach to consultation. In Aboriginal consultation, there is no silver-bullet answer on how to approach consultation. There are five policy suggestions for further research that might allow for Alberta to improve its consultation for all parties involved: 1) Establishing consultation at the stage of issuance of leasing and licencing of crown mineral leases, 2) Establishing an oversight tribunal for effective dispute resolution outside of the court system, 3) The improved inclusion of cumulative effects planning, in particular, cumulative effects of projects, 4) Establishing regional Aboriginal consultation offices to assist with capacity for surrounding First Nations, and 5) True inclusion of First Nations in the creation and adaptation of additional consultation initiatives.