Canada: What Does Consultation And Accommodation Mean?

IN THE FALL of 1997, I had the opportunity to work with the Sto:lo Nation of the Fraser Valley of BC. Sto:lo comprised 19 First Nations at that time, and had just created a business arm, Sto:lo Development Corp., whose mandate was to create economic opportunities in its territory.

It was during this time that the landmark Delgamuukw v. BC ruling was handed down by the Supreme Court of Canada. First Nations across Canada saw this important judgment to be a major victory, as it confirmed that Aboriginal title did indeed exist and that title included a right to the land itself. Delgamuukw required both levels of government to consult with First Nations, and where required, accommodate their interests. Thus, the era of the "consultation and accommodation" began.

I recall it being an exciting and hopeful time for BC First Nations, as it provided an opportunity to redefine their relationship with BC and Canada, and also provided an eye-opener for the BC Treaty Process, which was then five years old but slow to get off the ground.

While Delgamuukw identified the need for consultation and accommodation, it didn't speak to how this process should work. The BC government began to develop its policies, while First Nations established their own expectations. This is where the challenges began. First Nations viewed BC's consultation approach as too limiting, as discussions focused on specific areas and were restricted to traditional activities. First Nations grew frustrated with a process that was viewed as unilateral and not fully representative of their interests.

The consultation discussion was again bolstered by the Haida/Taku decision in 2004. These cases added an additional "economic component" to the accommodation discussions. And directly on their heels was the "New Relationship Agreement" between BC and First Nations. This agreement set out a path for new institutions and processes to be created that allowed for shared decision-making and revenue-sharing between the two. While this agreement was an obvious step forward, First Nations generally found the implementation of the agreement troublesome.

For First Nations, shared decision-making meant the province shared their decision when they made it — in other words, unilaterally. In terms of the sharing of resource revenue, this was again seen as unsatisfactory. BC determined which revenues would be shared – forestry: yes, gaming: no – and offered on a take-it-or-leave-it basis.

Caught in the middle of all of this was industry, which simply wanted to understand the rules of the game. Who should they talk to? How and when were decisions going to be made? This obviously created an air of uncertainty and increased risk.

Moving forward, add another landmark ruling in the Supreme Court of Canada. The Tsilhqot'in Nation v. BC decision in June granted Aboriginal title to the Tsilhqot'in Nation of 1,900 square kilometres, a large portion of its traditional territory. The case began with a forestry-related consultation matter on Tsilhqot'in Nation territory. The ruling will have a major impact on the future of the Tsilhqot'in people, but the case will also affect relations between Crown and First Nations across Canada (see "Game Changer," page 72).

It is unquestionably clear that change is required. In 1996, shortly after the start of the Treaty Process in BC, First Nations living on reserve were earning only 49 per cent of what the province's non-Aboriginal population earned. By 2011, the situation hadn't improved, but worsened — First Nations living on reserve were earning only 46 per cent of what non-Aboriginals earned.

Most expect changes to the current consultation and accommodation processes in BC, along with the Treaty Process. No longer will discussion be narrowly focused on specific areas or traditional activities, but will instead fall within the context of Aboriginal title within traditional territories. My non-legal view of the case leads me to believe that BC and other jurisdictions will view the risks as too high to continue with past consultation and accommodation practices. There will be an opportunity to engage First Nations, either through project consultations or through the Treaty Process, in a new manner respecting the recent legal reality.

The consultation and accommodation process, along with the BC Treaty Process, are complicated, evolving areas. Recent developments provide an invitation for all parties – First Nations, government, and industry – to assess successes and failures, and move forward in a positive manner.

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