Supreme Court of Canada rulings have defined Meaningful Consultation as having two components87:
It has been shown that because of the policy of forced assimilation, these two components are not enough to fulfill Meaningful Consultation’s goal to reconcile the pre-existence of Aboriginal societies with the sovereignty of the Crown. To augment the process, each of the two components must themselves be separated into two parts106. The resulting four steps of a Meaningful Consultation process are:
This four step Meaningful Consultation process107 is capable of honouring Aboriginal law, Canadian legislation, common law and international recommendations on meaningful Aboriginal consultation.
Meaningful Consultation of Aboriginal rights is about functionally including those rights in Canada’s national infrastructure framework. To do this Aboriginal and non-Aboriginal national infrastructures must weave together to create a mosaic of local, regional and central services that together function as Canada’s national infrastructure, respecting both Aboriginal and non-Aboriginal rights. Unfortunately, most Aboriginal infrastructure was destroyed by Canada’s policy of forced assimilation making it impossible to start Meaningful Consultation on an equal nation-to-nation footing. Consultation of Aboriginal Elders and Aboriginal Nations before commencing nation-to-nation consultation provides a database for the knowledge and understanding of Aboriginal infrastructure needed by both Aboriginal and consulting governments to generate working definitions for culture-based Aboriginal infrastructure. This “pre-requisite” intra-nation consultation is referred to as the Nation Consultation and it is the first step in Meaningful Consultation.
The information obtained from the Nation Consultation not only provides guidance to Aboriginal leaders and a definition of Aboriginal infrastructure for Canada to respect, it also provides a cultural database through which all non-Aboriginal institutions and citizens can understand and respect Aboriginal culture, law and regulation, and rights. If Canada had not forced the assimilation of Aboriginal Peoples, the Nation Consultation step would not be necessary.
The Nation Consultation is a pre-requisite step to all aspects of the Meaningful Consultation process. It is a facilitated process to acquire a detailed database on Aboriginal culture. Nation Consultation is the only part of the four-step Meaningful Consultation process that can be separated and initiated on its own without triggering a full process based on the Aboriginal right to consultation.
In 1996, the Report of the Royal Commission on Aboriginal Peoples recommended Canada fund the creation of a database on Aboriginal history and culture that reflected the diversity of Aboriginal Nations in Canada56. That database was never created.
The Nation Consultation step is a consultation defined and guided by Elders104. It will need to occur with urban and land-based Aboriginal populations and nations. It has two distinct components:
A. Elder Seeking: Consultation of Elders for definition of the cultural process for Nation Consultation. The cultural process would become the culturally-sensitive procedure used for the consultation of the Aboriginal Nation or urban population.
1. Land-Based: A request to consult Elders is presented to the nation’s governing council. The format for the seeking will be set by the governance council. The resultant Elder-defined consultation process will need to be ratified by the national governance. The cultural process will vary for different nations and may vary within each nation depending on the right under consultation.
2. Urban-Based: Urban-based communities can be defined using the influence radius of existing Aboriginal community centres (eg. United Native Friendship Centres and Metis Community Centres), by regional divisions of national Aboriginal organizations (Assembly of First Nations, Congress of Aboriginal Peoples, Inuit Tapiriit Kanatami and Métis National Council) or, a working combination of Aboriginal community centres and national Aboriginal organizations. A request will be made to the national, regional or local office or governance to consult Elders or the council/group that has been created to provide Elder-based guidance. The defined consultation process will need to be ratified by the office or governance to whom the request was initially made.
B. National Consultation: Consultation of the Aboriginal Nation on a specific right using the Elder-defined consultation procedure. The Nation Consultation has several components starting with Elders. The final results of the national consultation will need to be ratified by the national governance. The following are very basic examples of national consultation for discussion purposes only.
a. Elder Consultation: Has two components;
i. Base: Elders speak on the right under consultation to provide definition, history and a deep cultural understanding of the right; and,
ii. Bridge: Elders respond to specific questions on the right under consultation which focusses answers to provide a bridge (link) between Aboriginal and non-Aboriginal societies; between cultural knowledge and existing community, regional and global infrastructure for the expression of the right.
b. Community Consultation: Results of the Elder consultation are presented in each community. Community comments and concerns will identify and define cultural community roles, citizen needs and, services and programs needed to express the right under consultation;
c. Special Council Consultation: Comments and concerns from special councils on results of the Elder consultation will identify cultural special council roles and target group-specific service and program needs based on the expression of the right under consultation (eg. Women’s and Youth Councils);
d. Regional Resource Council Consultation: Results of the Elder, community and special council consultations are presented to regional resource councils. Their comments and concerns on practical application of results from the Elder consultation will identify cultural regional resource council roles and needed infrastructure services to provide programs identified in community and special council consultations; and,
e. Governing Council Consultation: Results of the Elder, community, special council and regional resource council consultations are presented to the nation’s governing council. Comments and concerns will identify cultural governing council roles and legislative issues needed to realize the expression of the right under consultation.
2. Urban Based: The hierarchical structure of the urban-based consultation may be very different then presented in this example. The primary reason for this is the utilization of community centres under the jurisdiction of different national, provincial, territorial or regional Aboriginal organizations which we will refer to collectively as the Aboriginal Centre Under Consultation (ACUC). Where Elders, special councils and governing bodies are located within these ACUCs will dramatically influence the format of the national consultation.
a. Elder Consultation: Has the same two components as in the land-based national consultation;
i. Base: See earlier.
ii. Bridge: See earlier.
b. Community Consultation: The community will be defined using the influence radius of the local community centre of the ACUC through which the consultation is occurring. The result of the Elder consultation is presented. Community comments and concerns will identify and define cultural community roles, citizen needs and, services and programs needed to express the right under consultation;
c. Special Council Consultation: Comments and concerns from special councils associated with the ACUC on results obtained with the Elder consultation will identify cultural special council roles and target group-specific service and program needs based on the expression of the right under consultation (eg. Women’s and Youth Councils); and,
d. ACUC Consultation: Results of the Elder, community and special council consultations are presented to the ACUC. Comments and concerns will identify cultural ACUC roles and legislative issues needed to realize the expression of the right under consultation.
The first step in Meaningful Consultation, Nation Consultation, has clear goals. Goal attainment is a clear measure of success. The first goal in Nation Consultation is the successful completion of Elder seeking; or,
The second, and primary, goal in Nation Consultation is the completion of the national consultation; or,
The success of the database will be measured by its ability to:
A Nation Consultation that meets the above goals and measures of success will be able to provide the database for the respect and reconciliation of Aboriginal rights with non-Aboriginal rights.
The Nation Consultation has five basic requirements:
1. Aboriginal Nations to be consulted: Included are:
2. Dedicated technical support: Due to the magnitude of data acquisition and processing, the number of Nation Consultations that need to be undertaken across the country, and the need for consistent, accountable data collection, a consultation infrastructure must be put in place using a non-partizan, non-governmental organization (NGO) to facilitate Nation Consultations.
3. Data handling system for:
4. Public Education Institution: to receive, house, provide access to, and maintain the hard and electronic copies of the database upon completion. Copies are also given to the Aboriginal Nation.
5. Funding: The Report of the Royal Commission on Aboriginal Peoples recommends the federal government fund the creation of consultation-based database56; common law identified the requirement of federal, provincial and territorial governments to provide technical assistance and funding during Aboriginal consultation98; and the United Nations called for ways to provide Indigenous Peoples with access to technical and financial resources to participate in consultation105. Costs will be incurred by the Aboriginal nation and the NGO. Funding is needed for:
Video and audio recorded during the Nation Consultations will be:
A dedicated non-partizan NGO will be used to provide technical expertise to create the cultural database. A non-partizan NGO is used since it:
The combination of live monitoring, polished but unaltered data, nation ratification and the use of a non-partizan NGO will keep the Nation Consultation transparent and accountable.
© Christian Aboriginal Infrastructure Developments
Last Updated October 9, 2017