112. The basic challenge of Indigenous consultation and
accommodation arises because Canada's conduct and treatment
of Indigenous peoples has caused immeasurable harm. As a
result, Canada's relationship with Indigenous peoples
suffers from a lack of respect and trust. The need for
reconciliation emanates from the need to establish respectful
relationships. Reconciliation must therefore form the core of any
consultation and accommodation process.
113. Canada is still beginning its reconciliation
with Indigenous peoples. While it is important to acknowledge
that progress has been made, we cannot lose sight of the long road
ahead. Similarly, the principles of free, prior and informed
consent are still relatively novel, and have not been subject to
substantial interpretation. While future legislation, government
policy, and judicial interpretation will determine whether the duty
to consult and, if appropriate, accommodate under Canadian law, and
the international principles of free, prior and informed consent
differ in certain ways, it is clear that both share the same goal:
to protect Aboriginal peoples' rights, remedy historical
disadvantage, and provide the foundation for a more dignified and
respectful relationship between Indigenous peoples and Canada.
Both regimes aim to foster reconciliation.
114. To build the necessary respect and trust that underlies
reconciliation, we cannot simply proclaim it. We need to earn that
respect and trust through conduct and action. One way in which
reconciliation can be fostered is by approaching Indigenous
consultation and accommodation processes through the lens of
building long-term relationships, aimed at satisfying all
parties' interests. It is useful to think of these
relationships through the mindset of partnership. A partnership
model is the antithesis of unilateralism, exploitation and
115. Flowing from the model of partnership, Indigenous
peoples should be provided with the opportunity to participate in
all aspects—procedural and substantive—of a project or
activity that may affect their rights. In the context of this
approach, government should play a useful role in determining the
appropriate form of consultation in the context and helping parties
align their incentives so that all significant interests can be
116. It is undeniable that the imperative of reconciliation
falls first on the shoulders of the Crown. However, in practice,
when Indigenous consultations are required in connection to a
project or activity led by the private sector, the consultation
process is in whole or in part delegated to the proponent. Various
corporate codes of conduct have incorporated the principles of
free, prior and informed consent. The Truth and Reconciliation
Commission called on the private sector in Canada, as well as
Canadian governments, to implement the Declaration. It is therefore
important for the private sector in Canada to consider how its
actions may facilitate reconciliation as well. By
approaching Indigenous peoples as partners, Canadian companies
take an important step.
117. The review reflected in this paper reveals many challenges
on the path towards reconciliation, but by the same token, those
challenges present unique opportunities for Canada
and Indigenous peoples to build a relationship that endures
and is worthy of celebration by everyone.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should be
sought about your specific circumstances.
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