The Duty to Consult First Nations within the Environmental Assessment Process: A Resource Industry Perspective

The legal doctrine, ‘Duty to Consult’, was set through a number of landmark court cases between 1997 and 2004. It is this duty that has helped First Nations receive official stakeholder status in the negotiation of land and resource use issues in British Columbia (BC), Canada. Later, policy initiatives, a best practices handbook, and procedure development shaped through the actual practice of consultation, contributed to the formation of an ‘in practice’ reality of this duty. When making an application to undertake a resource extraction or utilization project, industry proponents must go through BC’s Environmental Assessment (EA) process. This process is one example of where the ‘Duty to Consult’ has been applied in the form of a required consultation with First Nations affected by a proposed project. Despite the formation of law and policy meant to guide this area of practice and produce successful consultation activities, it is left unclear from law and policy alone what actual strategies are used by industry proponents to meet the requirements of consultation during an EA. However, as successful consultation is the goal, understanding the strategies alone is insufficient for creating a clear picture of the important considerations of this process. For this reason, the research sought to understand what overarching approach, aside from legal parameters and policy frameworks, guide the practice of consultation with First Nations in private sector resource industry projects. Identifying and examining the difficulties of consultation from the perspective of industry helped explain what the overall approach must be when undertaking this type of consultation and why this approach is of such importance. In the last few years EA has gained greater attention in BC. Due to this, reviewing the legal context and documents that officially shape the practice of consultation within the EA process is timely, relevant and provides a basis for further research. The research involved interviews with industry proponents and staff at the Environmental Assessment Office (EAO). These served to develop an understanding of the individual experience of those working in the field. In developing a fuller picture of the subtleties of the consultation process, the interviews are supplemented with an analysis of the social and political context that influences consultation. The analysis revealed that more effective consultations prioritize relationship-building as their primary approach and are responsive to the varying local conditions, as each community engaged with is unique. The findings present challenges perceived on the industry side that may help provide better understanding of the influences on the EA process and approach used by industry proponents. Although there are subtle differences between the issues identified by both the EAO and the industry proponents interviewed, overall the similarities were significant. All of those interviewed identified relationship-building between all stakeholders as a key approach to the process and to the long-term success of the projects being proposed. Given the historical context of the relationship between all stakeholders, the conclusion of the research is that, although building trusting relationships will be difficult given the history of relations, it is also the starting point for building greater understanding and repairing trust within this particular sector.

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