3.
CONSULTATION: MODELS AND ELEMENTS
3.1
Elements of Effective Approaches to Consultation
An analysis of the recent First Nations guidelines and protocols for consultation suggests
that knowledge-building in five broad areas can help build the knowledge and capabilities
of First Nations.
These are:
Consultation principles define the rules or codes of conduct under which the
consultation process should take place, enable a First Nation to identify and
highlight exactly those rules by which it considers meaningful consultation must
take place.
Consultation procedures and steps refer to the series of actions that need to be
taken to accomplish a successful consultation. By explicitly defining these
procedures First Nations can ensure that the consultation process to take place in a
way that is compatible on Aboriginal principles and reflects the principles
enunciated by the Supreme Court of Canada.
Consultation plans determine the parameters of the consultation, information
needs, appropriate consultation methods scope, timing, resources, participants,
nature of evaluation and feedback. Developing a consultation plan enables both
parties to address important issues such as the use of facilitators, the participation
of Third Parties in the consultation, funding, use of negotiating techniques, etc
Accommodation is required when a proposed action will infringe upon a First
Nation’s rights. In these cases the legal duty to consult will necessitate concrete
steps to accommodate Aboriginal interests. Accommodation may be put in place
through impact benefit agreements.
Lack of resources and funding has been a major stumbling block to meaningful
and valid consultation and accommodation with First Nations. The duty to consult
and accommodate, carries with it the obligation to ensure adequate and sustained
funding for First Nations to carry out the ongoing work of identifying and
articulating their interests and to participate in decision-making processes.
Each of these elements is developed in more detail in the Fact Sheets that are presented in
the Appendix to this report. These Fact Sheets define and describe the individual
elements, as well as explain the contribution that they can make to effective consultation.
The Fact Sheets also provide concrete examples of how different First Nation
organizations have implemented in each area, and indicate additional resources that are
available to expand and further develop the six key elements.