Consultation versus engagement
CONSULTATION
Legal obligation: Almost every modern treaty includes obligations to consult in certain circumstances and a definition of what it involves
The Federal Government must consult and accommodate the modern treaty holder if actions could adversely affect a modern treaty holder’s rights
ENGAGEMENT
Legal obligation: If specific engagement requirements are listed in a modern treaty
Involve Indigenous modern treaty holders in legislative, policy, and program renewal or design to ensure federal initiatives are consistent with modern treaty relationships, objectives, and obligations
The following text is taken from the LCAC course Modern Treaty Governments, part 4.
Almost every modern treaty includes specific obligations to consult in certain circumstances as well as a definition of what such consultation will involve. The Crown also has a duty to consult under the common law whenever they are considering actions that could adversely affect a modern treaty holder’s rights.
But what is consultation? Let’s use an example.
Imagine that the federal Crown is considering introducing restrictions on harvesting of certain fish species to conserve declining fish stocks, but one of these species is part of an important cultural ceremony for a modern treaty people. Here’s a step-by-step example demonstrating how the consultation process could unfold:
- The Crown approaches the modern treaty holder well in advance of any action related to the proposed activity to tell them what they wish to consult about and explain it thoroughly. “We are considering restricting fishing of this species to conserve stocks.”
- The modern treaty holder is provided with all related information and given an appropriate amount of time to consider what is being proposed. The time required varies with the complexity of the activity. “Here are the files that document the decline in fish stocks, and that outline our plan and the reasons why we have chosen this approach.”
- It may be necessary for the Crown to provide financial and/or other resources to the modern treaty holder so they can thoroughly research and assess the situation and come to a full understanding. “There is some funding available for you to hire outside professionals who can help you analyze the information and formulate a response.”
- The modern treaty holder provides their response to the Crown. “We understand the need for a restriction on fish harvesting, but one of these species is used in an important cultural ceremony that must be observed yearly. We require an exception to the restrictions on that species for that ceremony only.”
- The Crown receives the modern treaty holder’s response and is obliged to make a reasonable accommodation. This means that in some cases, policies may have to be changed and timelines altered to accommodate the concerns raised. “Thank you for your response. We will institute the restrictions as described, with the addition of the exception you proposed.”
Modern treaty provisions must be followed; it is not optional. Consultation is the Crown’s duty to consult under the common law when potential actions by the Federal Government could adversely affect an Indigenous modern treaty holder’s rights.
On the other hand, engagement involves relevant Indigenous modern treaty holders in the legislative, policy, and program renewal or design to ensure that the unique circumstances and authorities of Indigenous modern treaty holders are considered and respected. Engagement can also be specific to a modern treaty that outlines engagement requirements.
