Academic journal article Canadian Public Administration

Understanding Consultation and Engagement of Indigenous Peoples in Resource Development: A Policy Framing Approach

Academic journal article Canadian Public Administration

Understanding Consultation and Engagement of Indigenous Peoples in Resource Development: A Policy Framing Approach

Article excerpt

Canada's legal system has repeatedly ruled that the Crown has a duty to consult with Indigenous Peoples when approving and shaping resource development projects that are located on their land or could infringe on their rights. Governments are gaining more experience when it comes to meeting their legal requirements to consult Indigenous Peoples. Partnerships and other arrangements have emerged between private companies and local communities and many in industry now recognize the benefits of working with Indigenous communities (Canadian Association of Petroleum Producers [CAPP] 2006; Mining Association of Canada [MAC] 2008; Canadian Energy Pipeline Association [CEPA] 2014). Yet, there are still incidences when Indigenous communities and organizations find formal consultation processes, and the approach to engagement (1) taken by industry and government, to be lacking. This article is concerned with cases where consultation processes have led to conflict among the various groups involved. These conflicts are a small portion of the total number of cases where the legal duty to consult has been triggered (Newman 2017). However, they frequently become the focus of heated debate between and within Indigenous and non-Indigenous societies. Finding ways to address these cases and avoid conflictual relations, even if not the norm, is essential to reconciliation between Indigenous Peoples, the Canadian state, and non-Indigenous Canadian society.

When controversy over consultation of Indigenous Peoples on resource development emerges, the parties involved often end up before the courts. For example, at the end of August 2018, the Federal Court of Appeals rejected the federal government's approval of the Trans Mountain pipeline, partly because the government did not fulfill its duty to consult Indigenous Peoples (Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153). The legal challenge was brought forward by the Tsleil-Waututh Nation and several other Indigenous groups in BC. (2) Legal challenges have also occurred over smaller, yet still important, activities and decisions. For example, the Haida Nation decision, which clarified the conditions under which government is required to consult Indigenous Peoples, was related to the transfer of a tree farming license by government between two private companies (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511). A case brought forward by the K'omoks First Nation related to the government's issuance of short-term shellfish aquaculture licenses on Vancouver Island (K'omoks First Nation v. Canada (Attorney General), 2012 FC 1160). Controversy regarding a lack of consultation and engagement has even resulted in civil protest and violence, as was the case with the Elsipogtog First Nation in New Brunswick who oppose shale gas exploration on their traditional territories.

One way to address disputes over resource development is to generate more and better evidence about the benefits and impacts of a project to improve decision making. However, a large literature on the role of evidence in policy-making suggests that actors tend to use information and analysis to support and promote their positions, rather than question, compromise or change them (e.g., Majone 1989; Stone 2002; Sabatier 1988). We argue that a policy framing approach (Schon and Rein 1995; Rein and Schon 1996), which examines how the different actors frame or define controversial and intractable policy problems, can provide insight into why disputes over consultation and resource development exist.

The article begins with a review of the literature related to consultation and engagement of Indigenous Peoples and resource development in Canada. Next, the policy framing approach is outlined to highlight its relevance for understanding why disputes occur. Finally, the different frames likely to be present in resource development and consultation are identified and compared using publicly available documents produced by Indigenous groups and communities, governments and industry. …

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