Engagement processes include online surveys and feedback forms, face-to-face discussions, focus groups, and public forums. It is inappropriate to consider engagements equivalent to consultation when they are simple, informal processes.
Engagement activities derive from Canada’s whole-of-government approach to renew Indigenous relationships. Dialogue with engaged partners and stakeholders is used to develop Indigenous policies, programs, and legislation.1 Stakeholders include individuals, associations, organizations, and other levels of the federal government. Partners include Indigenous partners (Treaty, National, and Institution) plus provincial and territorial governments.
Engagement processes on Indigenous issues should not be confused with meaningful consultation and the duty to consult.
The whole-of-government (WOG) approach2 is where government departments and other public service agencies work across portfolio boundaries to achieve a common goal for an integrated response to a particular issue. The success of the response is seen in its ability to achieve horizontal and vertical coordination in a seamless way between the engaged departments and agencies. Vertical coordination could be between different government ‘silos’ such as departments and horizontal coordination between policies within the same department. A WOG approach can be focused on policy development, program development, or service delivery.
The scope of a WOG initiative has three basic components:
1. Goals: - Policy-making or policy implementation are the general goals.
2. Linkages: - Vertical and horizontal linkages need to be chosen and defined.
3. Targets: - The WOG initiative needs to be targeted at a group, locality, or policy sector.
There are a three basic perspectives for a WOG Initiative that can be coordinated towards a common goal:
- Structural or Instrument Design:
- This type of WOG initiative is about organization or reorganization of policy or policy implementation; and,
- Structural and instrument reforms can be:
- Hierarchical with a clear lead and subordinate authority structure; or,
- Negotiative with multiple leaders from equal-ranked players – partners.
- Cultural Compatibility:
- This type of WOG initiative is about evolving and adapting (reforming) practices between closely integrated entities in response to internal and external pressure – including ‘best practices’.
- Myth Promotion:
- This type of WOG initiative is about promoting myths, symbols, or trends to prepare participants, the public, or media to accept an ‘unavoidable’ policy (structural) reform.
As one can see, a WOG approach is it not a vague expression used by government bureaucracy, it is government management system with gears and mechanisms for creating reform. It even includes a propaganda (myth) promotion stream.
One of the most successful WOG initiatives undertaken by the federal government is the myth promotion of rights contained in section 35 of the Constitution Act. Treaty and Aboriginal rights contained in section 35 have been promoted as the Crown’s recognition of Indigenous Peoples and their rights. However, Treaty and Aboriginal rights under section 35 replace Indigenous sovereignty to land and Immemorial rights to self-determination creating an alternate rights regime and ethnic Aboriginal citizens with extinguished sovereignty over lands, resources, and peoples.
Current Crown engagement processes on law, policy and operational practices do not respect Indigenous Peoples:
- They do not recognize Indigenous sovereignty, Immemorial rights, law, or Inherent Jurisdiction;
- They do not partner with Indigenous communities;
- They ignore the consultation of Indigenous community-based Immemorial rights-holders; and,
- They fail to recognize Indigenous Peoples as distinct nations.
Specific problems with the Crown’s engagement processes include issues with:
1. Nation-to-nation status;
2. Rights-holder inclusion;
3. Duty to consult circumvention; and,
4. Public forum utilization.
WOG initiatives are about reform within ‘a’ government. By definition, WOG approaches cannot be extended over other nations and their governments. For example: The Crown cannot have a WOG initiative with Germany to create a policy on trade. The Government of Canada would need to consult with German authorities and negotiate an agreement with them. Likewise, the Crown cannot extend its WOG approach over Indigenous Peoples while at the same time recognizing Indigenous sovereignty, and therefore distinct Indigenous nations.
If Indigenous Peoples are received by the Government of Canada as sovereign governments, joint policy-making and policy implementation must be done through meaningful consultation and the negotiation of agreements with community-based Immemorial rights-holders for each nation – this is not happening.
A WOG approach with Indigenous engagement is incapable of recognizing or establishing a nation-to-nation, Inuit-to-Crown, or government-to-government relationship.
The Government of Canada’s engagements consult Indigenous partners who were created through Crown-Delegated Jurisdiction. They do not have the Inherent Jurisdiction of Indigenous Peoples to legally represent community-based rights-holders. Crown-delegated Indigenous partners include the Assembly of First Nations, Inuit Tapiriit Kanatami and Métis National Council.
Engaging Indigenous partners and stakeholders ignores the need to consult Indigenous community-based rights-holders and the Inherent Jurisdiction of Indigenous government on issues that affect sovereign and international rights to self-determination for economic, political, social, and cultural development.
The Crown has a duty to consult Indigenous Peoples on policy, legislation, regulations, and programs that may adversely affect section 35 Aboriginal and Treaty rights. This duty to consult involves meaningful consultation regarding changes that may affect Indigenous land claims and communal rights. Crown engagements cannot substitute for legally required meaningful consultation.3,4
The Government of Canada’s engagements with Indigenous partners as if sovereign Indigenous Peoples and community rights-holders do not exist.
Crown engagements for policy, legislation, regulation, and program reform use public forums to engage Indigenous partners and stakeholders. Courts in Canada have already ruled that public forum processes, like those used in engagements, cannot legally substitute for the meaningful consultation of Indigenous Peoples.5
Engagements processes have their uses, but they do no include the engagement of Indigenous Peoples for government policy, legislation, regulation or program reform.
1. (2018) Consultation and Engagement at Indigenous and Northern Affairs Canada, Indigenous and Northern Affairs Canada Website. Accessed 2018-04-03 https://www.aadnc-aandc.gc.ca/eng/1307644732392/1307644769769
2. (2006) Christensen, T., & Lægreid, P., The Whole-of-Government Approach Approach – Regulation, Performance, and Public Sector Reform. Stein Rokkan Centre for Social Studies, UNIFOB AS, August 2006, Working Paper 6 – 2006. https://caid.ca/WhoofGovApr2006.pdf
3. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para 115. https://caid.ca/DelDec1997.pdf
4. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para 168. https://caid.ca/DelDec1997.pdf
5. Dene Tha’ First Nation v. British Columbia (Minister of Environment), [2006] FC 1354, 2008 FCA 20, at para. 104 &115. https://caid.ca/DeneThaDec2006.pdf
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