Call to Action # 92: Actions and Commitments

Canadian Chamber of Commerce


September, 2016


Business Advocacy Groups

Seizing Six Opportunities for More Clarity in the Duty to Consult and Accommodate Process

Canadian Chamber of Commerce is a network of over 450+ Chambers of Commerce and Boards of Trade representing 200,000 businesses of all sizes across all sectors of the Canadian economy

Recommendations

Opportunity 1: A Consistent Framework for the Duty to Consult and Accommodate

That the federal government:

More actively communicate the services available to assist proponents in obtaining background information on Indigenous peoples, their historical and current relationships with the Crown, their rights and relevant contact information.

Work with businesses, Indigenous peoples and other levels of government to develop a consistent duty to consult and accommodate framework that recognizes the different approaches to engagement, consultation, accommodation each community and project requires and clearly defines:

  • The aspect of the project that triggers the duty to consult and accommodate.
  • If the Crown will delegate all or some aspects of the consultation/accommodation, which ones and when.
  • The Indigenous peoples affected and their rights (established and/or potential).
  • The level of consultation required and how it should be undertaken.
  • What information the Crown will provide to businesses and Indigenous communities.
  • What resources/capacity are required by the Indigenous communities and who is responsible for providing them and bearing any costs involved.
  • The Crown’s involvement, including:
    • Primary contact person/resource
    • Whether it will facilitate pre-consultation engagement between the proponent(s) and the affected Indigenous communities.
    • Whether it will provide advice or direction only.
    • Whether it will be “on the ground” in the Indigenous community with the proponent, on its own or not at all.
  • Expectations of the affected Indigenous community(ies).
  • Timelines (for proponents, Indigenous communities, and the Crown).
  • How the Crown will monitor the consultation and accommodation negotiations between proponents and Indigenous communities to measure whether each met the expectations of them and met their commitments.

Opportunity 2: Remembering that Engagement with Indigenous Peoples Is Often More Effective than Consultation

The federal government needs to bring Indigenous and business representatives together to develop a robust framework for engagement that emphasizes building relationships as a first step, whenever feasible, before consultation and accommodation discussions focused on particular projects begin as well as what each party will be accountable for. The resulting framework must be accompanied by resources to assist the Crown, business and Indigenous communities in ensuring that engagement:

  • Respects the nation-to-nation relationship.
  • Reflects the rights and circumstances of Indigenous communities.
  • Provides businesses with the ground rules they need to avoid derailing potential projects due to missteps.

Opportunity 3: Demonstrating the Crown Has “Skin in the Game”

That the federal government establish a Commissioner of Indigenous Consultation and Accommodation within the Office of the Auditor General with the mandate of providing semi-annual whole-of-government reports on the federal Crown’s performance of its constitutional duties. In addition to assessing the Crown’s risk management, the Commissioner’s reports should include the number of consultations undertaken in the period reviewed, those that were conducted by the Crown, completely and/or partially delegated as well as their outcomes/status.

Opportunity 4: The Federal Government’s Commitment to a New, Respectful Relationship with Indigenous Peoples

The federal government:

  • By mid-2017, should establish the framework and timelines for the review of laws, policies and operational practices related to its implementation of the recommendations of the Truth and Reconciliation Commission and the UNDRIP in its entirety. This review needs seek the perspectives of a broad range of stake/rights holders, including businesses and Indigenous communities, and address the tools to be available to each to fulfill additional obligations required of them.
  • Communicate, annually, its progress in addressing fundamental quality of life issues for Indigenous peoples including clean drinking water, housing, education and healthcare

Opportunity 5; Building Capacity for Indigenous Communities

That the federal government be more ambitious in its definitions of Indigenous capacity building including such options as:

  1. Tools to help Indigenous communities develop their own consultation guidelines for proponents based on their histories, rights and lands.
  2. Organizing, in cooperation with other levels of government, regional conferences, workshops, etc. for Indigenous communities to share their expertise, best practices, etc.
  3. Seeking the views of business and Indigenous representatives on a proponent-financed, arm’s-length fund that would be available for Indigenous communities to hire the capacity they do not have, what it could/could not be used for, etc.
  4. Working with the provinces/territories to develop a list of suggested legal, environmental and other advisers to whom Indigenous representatives could turn for assistance if needed.
  5. Assisting Indigenous communities to establish access to capital, for example, business loan guarantees and credit rating assistance.
  6. Helping Indigenous communities document their resources (natural, human, financial, etc).

Opportunity 6: Businesses Looking at Consultation and Accommodation as an Investment, Not an Expense