By Anne Harding
It was late summer of 2018, and the Federal Court of Appeal had just issued its decision in the Tsleil-Waututh Nation v. Canada (Attorney General) case regarding the TransMountain Expansion Project (TMX). Many of you may remember that this was the decision that quashed the approval that had been issued for the pipeline, which halted construction for a period of time. One of the reasons that the approval was quashed was that Canada had failed to meaningfully consult Indigenous Peoples.
I recall being incredibly frustrated by many of the headlines and quotes that came from political and industry leaders and commentators at the time. “Well, what is ‘meaningful consultation’ anyway?!?” and “How are we supposed to get anything built in this country if the goalposts keep changing!?!” were some of the quotes that stick with me to this day. I was frustrated because these views seemed to be feeding a narrative that the rights of Indigenous Peoples somehow keep changing, which results in uncertainty for economic development.
The reality, though, is that Indigenous Peoples’ rights are inherent, meaning that they have always existed. It’s actually Canadian institutions’ lack of proactive recognition of Indigenous rights that creates uncertainty for our economic future as a nation. If you want some great reading on what it might look like for our government institutions to make a shift toward rights recognition, I highly recommend reading Jody Wilson-Raybould’s book From Where I Stand. And perhaps in the future I’ll write a piece on why I believe Indigenous rights recognition is a key to unlocking more equitable economic and social prosperity in Canada.
But for now, I’ll focus on what I see as the fundamental elements of “meaningful consultation” and how organizations can engage meaningfully with Indigenous groups based on my own practice. While we don’t have sufficient legislation to help us understand what recognition of Indigenous rights looks like in Canada, we do have a tremendous body of legal decisions that lay out the essence of ‘meaningful consultation and accommodation’. In fact, there are now 335 Indigenous legal wins that help lay the bricks for a pathway to greater Indigenous inclusion and power in our country. Check out Bill Gallagher’s work to learn more about these past cases and keep track of new ones.
So, based on what we know from the courts, here are the elements of meaningful consultation and accommodation that don’t change. Think of these as the goalposts that haven’t changed:
Indigenous peoples have collectively held rights to the land that are unique from rights of other Canadians and unique to each nation;
The purpose of consulting with Indigenous Peoples is to truly understand the potential impact of development on unique rights;
The purpose of accommodation is to work together in good faith, with mutual respect, to address impact of development on unique rights; and
Meaningful consultation requires an authentic relationship, which often requires mutual trust, recognition, commitment, and vulnerability.
Unfortunately, though, it’s this last bullet that in my view, needs to change. Our colonial institutions are not designed to engage with authenticity, humility, reciprocity, and dare I say humanity. Rather, we are encouraged to separate our ‘work selves’ from our ‘personal selves’, and often pressured to put the interests of our organizations over the interests of communities. This practice often erodes trust and makes it even harder to engage meaningfully in the future.
So what would it look like if an organization structured its people, systems, and actions in a way that supported meaningful engagement with Indigenous Peoples? Well, let’s break it down:
Authentic relationships would be created intentionally between multiple people in an organization and multiple people in a community; not just the person with “Indigenous relations” in their title. Engagement would happen long before a decision needs to be made so that relationships can form and different interests and perspectives can be uncovered that might support a better decision. Organizations would have relationship succession planning so that relationships are not threatened if one person leaves the organization.
Mutual trust would be developed over time, through many different interactions and conversations that are not only driven by the interests of the organization. If there is a lack of trust, this would be acknowledged openly alongside a desire and commitment to rebuild and earn it back. Organizations would be willing to trust Indigenous communities as much, if not more, than they expect Indigenous groups to trust them.
Recognition of the diversity among Indigenous Nations and recognition of Indigenous rights by the organization because they know their history, not because a non-Indigenous government says so. Organizations would ensure all their employees and contractors have a basic understanding of the history and experiences of Indigenous Peoples so that there are no more questions of “why” we should engage, but more productive conversations about “how” we can engage in a way that respects and values Indigenous rights.
Commitment to see the engagement though, even as interests and priorities change. This is a tough one for many organizations who have a linear view of time and action. However, if we say we value strong, trusting, and reciprocal relationships with Indigenous Peoples then we can’t abandon those or change course with the wind, the stock market, or funding cycles. Organizations would shift the behaviours they incentivize by rewarding actions and approaches that support long term relationships with Indigenous communities in greater balance alongside other important metrics like budget and time.
Vulnerability would underpin every interaction with and discussion about Indigenous Peoples. We would show our humanity as people-first, with all our discomforts, awkwardness, curiosity, and hope. Instead of feeling the need to wait to engage Indigenous groups until there are answers for all their questions, an organization would engage Indigenous groups as they are just starting to think about the project or initiative and seek Indigenous perspectives to help inform not just the content of the work ahead, but also the ways of working. As a western and colonial society, we have much to learn from Indigenous ways of knowing (see my previous blog post about that here).
While the term ‘meaningful consultation’ has a specific legal connotation, I hope that the thoughts I’ve shared here offer a view to what the path to meaningful engagement might look like. In order to get to a different place in this country in terms of Indigenous inclusion and prosperity, we need to be able to have some pretty challenging conversations. And in order to be able to have tough conversations, we need stronger relationships built through trust, recognition, commitment, and vulnerability.