Consultation with Indigenous Peoples
Consultation with Indigenous Peoples
The Government of Canada is committed to renewing the relationship with Canada's Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership. This includes the commitment to ensure that Indigenous Peoples are in control of their own destiny and making decisions about their communitiesFootnote 1 and taking steps to ensure the federal government is living up to the Spirit and Intent of treaties, agreements and other constructive arrangements (such as Consultation Protocols) made with Indigenous Peoples.
How does Infrastructure Canada determine if there is a Duty to Consult?
Infrastructure Canada's approach to consultation with Indigenous Peoples is informed by the guidelines for federal officials developed by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC).
The Department recognizes early engagement as a best practice. Prior to project submission, project proponents (applicants of federal funding) are encouraged to engage with Indigenous groups early on in the project planning phase. This allows project proponents to provide project information to Indigenous groups and provide them with the opportunity to ask questions, note any concerns, or offer support for the project. Project proponents are then able to consider concerns and answer questions prior to submitting their application for funding, creating a more efficient, timely and streamlined approval process.
Once an application for project funding is received, Infrastructure Canada reviews the information provided by the project proponent and considers whether any further information or further Indigenous consultation is required.
The review process involves confirming the existence of the following:
- Potential for the project to have adverse impacts on Aboriginal and/or treaty rights.
There must be a link between the funding of a project and the project's potential negative impacts on an Indigenous groups' Aboriginal or treaty rights.
Infrastructure Canada reviews the information from the proponent and considers whether the project may cause changes to the environment, such as changes to surface water, groundwater, and land resources. If changes to the environment are identified, the Department considers whether these changes could result in adverse (ie: hostile, unfavourable, or harmful) impacts to Aboriginal and/or treaty rights in the project area and/or in neighboring communities.
For example, if a project were to cause changes to surface and groundwater resources that may impact aquatic animals and habitat, the Department would consider the project as having the potential to adversely impact traditional Indigenous fishing practices and/or Indigenous fisheries, and ultimately as having the potential to adversely impact Aboriginal and/or treaty fishing rights.
- The existence (claimed or established) of Aboriginal and/or treaty rights in the project area.
Infrastructure Canada reviews the information provided by the proponent and reviews the Federal Aboriginal and Treaty Rights Information System (ATRIS) to determine which Indigenous groups may potentially be adversely impacted by a Project and should be consulted.
If a project might adversely impact one or more Indigenous group, the Department has a legal duty to consult and where appropriate to accommodate, which it needs to fulfill prior to providing funding to the proponent.
How does Infrastructure Canada fulfil its Duty to Consult?
Infrastructure Canada strives to maintain good relationships with Indigenous, federal, provincial, territorial, and municipal partners. In order to fulfil its Duty to Consult requirements, the Department coordinates consultation processes when no other consultation process is in place and, when appropriate, relies on existing consultation processes to avoid duplication of effort and to create a streamlined process.
For example, if there are existing or planned consultation processes led by proponents such as Provinces and Territories, or Regulatory Agencies (e.g. Fisheries and Oceans Canada), Infrastructure Canada will rely on these processes. To this end, the Department considers if processes are aligned (i.e. involve consulting the same Indigenous groups and has the same scope of consultation), and if so, communicates with proponents and other implicated departments, that it will rely on the existing process.
Infrastructure Canada communicates its Duty to Consult requirements as early as possible in the approvals process. The Department also provides proponents with guidance and advice as provided by CIRNAC in their draft "Consultation and Accommodation Advice for Proponents" guidance document. Proponents are asked to address issues raised by Indigenous groups where appropriate, and to diligently document the communications between parties, make note where concerns have been addressed and if not, explain why.
Documentation in the form of consultation records, issues tracking tables, and letters to Indigenous groups (e.g. notification letters that solicit a response, responses to letters received from Indigenous groups, etc.) are used to inform Infrastructure Canada's assessment as to whether the Duty to Consult obligations have been met. If the Department is unable to assess the adequacy and meaningfulness of the consultation, or is unable to confirm consultation was undertaken, funding conditions will be required as specified in applicable funding agreements. For example, conditions may include that no payments on eligible capital costs be made until confirmation by Infrastructure Canada that the Duty to Consult requirements arising from the Department's activities have been met.
Consultation is an obligation based on respect for the rights and interests of Indigenous Peoples. Therefore, should an Indigenous group raise a legitimate concern after consultation was completed, it may be necessary to consider the concern further.
Project planning and submission
Project proponent documents all engagement with Indigenous groups
Proponent submits application to the department
Department reviews application
Step 1: Project has no consultation requirements
Step 2: Department proceeds to fund the project once all other eligibility criteria have been met
Step 1: Project has consultation requirements
Step 2: Department determines requirements have been met and proceeds to fund the project
Step 1: Project has consultation requirements that are either not met or consultation has not started
Step 2: Department informs proponent of requirements
Step 3: Consultation with Indigenous groups takes place*
Step 4: Concerns raised are addressed, avoided, mitigated and accommodated
Step 5: Department determines requirements are met and proceeds to fund the project once all other eligibility criteria have been met
*This depends on the program. Consultations may be done by the proponent, the province or territory, or other government departments. Under the Investing in Canada Infrastructure Program specifically, this is realized by the project proponent.
For additional information on Infrastructure Canada's approach to consulting with Canada's Indigenous Peoples or for additional information on Indigenous consultation analysis, please contact:
For additional information on the Aboriginal and Treaty Rights Information System, or the Aboriginal Consultation and Accommodation Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, developed by Crown-Indigenous Relations and Northern Affairs Canada, please visit the following websites:
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