Meaningful consultation must include Indigenous-definitions of consultation to ensure inclusion of Immemorial rights, Indigenous sovereingty, Indigenous jurisdiction and Indigenous law into consultation processes leading to free, prior and informed consent.
Indigenous rights-holders must define consultation processes for themselves. To recognize Immemorial rights, consultations of community-based rights-holders must be undertaken. However, there are several components that experience1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16 has shown will be included. Many Indigenous communities we have worked with have understood that ‘meaningful consultation’:
- Is culture-based;
- Is nation-to-nation, recognizing Indigenous sovereignty
- Recognizes Inherent Jurisdiction over community, Indigenous institutions, and traditional territory;
- Recognizes Indigenous stewardship over traditional territory;
- Consults Immemorial rights and Indigenous law;
- Recognizes Immemorial rights as equal to Crown rights;
- Includes the sovereign right to say, “no;” and,
- Ensures Immemorial rights remain intact for past, present, and future generations.
Indigenous communities see the basic goal of meaningful consultation as a bilateral sharing of rights and culture to establish a relationship for sharing the land based on the recognition of Indigenous sovereignty, Immemorial rights, law, and Inherent Jurisdiction.
Indigenous Peoples see basic objectives of meaningful consultation as:
- The inclusion of Immemorial rights, Indigenous law and traditional knowledge into the use of land in traditional territories (cultural inclusion);
- The recognition of Indigenous sovereignty and Inherent Jurisdiction in the use of land in traditional territories;
- The acquiring of consent from Indigenous rights-holders on both rights-based or land-based issues (land claim settlements, resource agreements, legislative changes affecting Immemorial, Fiduciary, Treaty, Aboriginal, and Inherent rights, societal institutions for health, education, child welfare and more, and etc.);
- The correction of wrongs caused by colonization and cultural genocide; and,
- The creation of agreements that protect Immemorial rights, Inherent Jurisdiction, self-determination and the land.
Community Immemorial rights-based meaningful consultations include, but are not limited to:
1. Consultation of rights related to self-determination and traditional territory:
a) Living on the land, sharing it, and managing it;
b) Hunting, fishing, gathering, trading, accessing other resources, and building to the benefit of families and communities;
c) Owning, directing, and managing societal institutions (education, health, child welfare, justice, land, etc.);
d) Governing communities, traditional territories, and relationships with outside jurisdictions; and,
e) Directing individual, community, and nation destinies.
2. Consultation for vested rights of land, water, plants, and animals within the traditional territory:
a) Protecting the land and its resources; and,
b) Monitoring the use of traditional territory.
1 (2017) Herbert, J. R. G., Indigenous Consultation and Accommodation of Immemorial Rights: Pre-existing Societies Initiative. https://caid.ca/CAIDImmRigIni 2015_17.pdf
2 (2006) Herbert, R. G., Traditional Deer Harvest-Management in Treaty #3: A Response to Harmonize with the MNR's Human-Deer Conflict Strategy. https://caid.ca/T3Deer111406.pdf
3 (2008) Herbert, R. G., A Model to Establish a New Framework for Aboriginal Economic Development in Canada. https://caid.ca/Model031108.pdf
4 (2008) Herbert, R. G., A Model for the Reconciliation of Canada with its Indigenous Peoples: Restoration of Missing Infrastructure Phase 1: Pilot Program Development. by Dr. R. G. Herbert. https://caid.ca/ModelInf091608.pdf
5 (2008) Herbert, R. G., Re-establishing Indigenous Culture and Prosperity. https://caid.ca/Indigenous011608.pdf
6 (2009) Herbert, R. G., Meaningful Aboriginal Consultation in Canada: A Review of the First Nation, Inuit, and Métis Right to Consultation and Accommodation on Wildlife Resource Management and Hunting as Defined by Common Law. https://caid.ca/ConsultWild2009.pdf
7 (2009) Herbert, R. G., Meaningful Consultation in Canada: The Alternative to Forced Aboriginal Assimilation. https://caid.ca/MeaCon092409.pdf
8 (2009) Herbert, R. G., Working Papers on Meaningful Aboriginal Consultation in Canada: Overview. https://caid.ca/MeaConOve101609.pdf
9 (2010) Herbert, R. G., Working Papers on Meaningful Aboriginal Consultation in Canada: Step 1 – Nation Consultation. https://caid.ca/MeaConOne102309.pdf
10 (2010) Herbert, R. G., Report II Expansion of Research and Preparation: Ross River Dena Council – Yukon Government Dog Management Pilot Program. https://caid.ca/CAIDYKDogResPreII2010.pdf
11 (2011) Herbert, R. G., Practical Meaningful Consultation in Canada. https://caid.ca/PracMeaCon022511.pdf
12 (2013) Herbert, R. G., Public Consultation Comments: Proposed Changes to Class 1 Quartz Programs and Placer Land Use Operations. https://caid.ca/CAIDYKMinExpCon2013.pdf
13 (2013) Herbert, J. R .G., Yukon Environmental and Socio-economic Assessment Board: Public Consultation on Atlin Lake Campground #2013-0113. https://caid.ca/CAIDYESABAtlCmpgrd2013.pdf
14 (2014) Herbert, J. R .G, First Nation Consultation: A Practical Guide. https://caid.ca/CAIDPraGui2014.pdf
15 (2017) Herbert, R. G., Matawa Health Co-operative 2016-17 Report. https://caid.ca/MHCIRep2017.pdf
16 (2017) Herbert, J. R. G, Sustainable Veterinary Service in Northern Canada: A Veterinarians Without Borders Workshop - Panel Notes for Dr. R.G. Herbert. https://caid.ca/CAIDVWBJuly2017.pdf
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