Duty to Consult… it’s all about Relationship
By David J. Stinson
Several years ago, Mark Douglas, an Elder from Rama First Nation, offered a prayer of welcome at a planning event. He praised the long registration period that morning for the chance it gave everyone to greet and mingle, indicating that it represented the true spirit of consultation.
Many Canadians remember phrases like the “Oka Crisis”, or the “Ipperwash Crisis”, or the “Caledonian Stand-off” as sad, even tragic incidents in our ongoing suppression of the Indigenous inhabitants of this land. What many do not realise is that these are not examples of parties estranged by a lack of genuine friendship, but of those who have forgotten the actual relationship they already have. For two and half centuries Aboriginal peoples were military allies, trading partners, fellow parishioners, even family members with the Europeans colonising the continent. These rich relationships were often formalised by Treaties. This began to change however, as the political foundations of Canada were being formed. The native relationship to the land was seen as a constraint on development and their independence was slowly subverted to that of wards of the state. In the late 20th century the courts began to recognise the error of this approach, stating that it is an abrogation of the “Honour of the Crown” to deal arbitrarily with land issues affecting Aboriginal peoples. In short, there is a “Duty to Consult”.
Steps taken in Lakeland so far
Over the past decade, the Lakeland District has initiated a dialogue on this topic. In 2006, it held a preliminary workshop at Beausoleil Frist Nation on community priorities. It has invited the Métis Nation of Ontario to make presentations to local planners. An introductory event was held in June 2012, when local Aboriginal representatives and planners were brought together in a half-day panel discussion. Recently, an intermediate-level workshop, “Duty to Consult & Planning” was facilitated by the Aboriginal Consultation Initiative (ACI) and the Lakeland District of OPPI. A capacity crowd of approximately 40 was hosted by the County of Simcoe on the 11th of February 2015.
Elder Mark Douglas was once again asked to help open the heart and focus the mind of those in attendance. In gratitude, he was presented with a pouch of tobacco, and again spoke of the importance of providing the time for people to get reacquainted. David Stinson from Incite Planning provided a historical context for the emergence of this issue. Carolyn King, former Chief of the Mississaugas of the New Credit First Nation, gave a primer on contemporary native life, with its tongue-in-cheek title “Indian 101"; quipping “I can say that, but you can’t”. This was followed by a discussion facilitated by Clara MacCallum Fraser of ACI. She interviewed Colette Isaac, a former administrator of the Pottawatomi of Moose Deer Point First Nation, and Ron Williamson, of Archaeological Services Inc., regarding their experiences of what consultation is and how it can be done well. Next, David briefly explained some basic consultation principles, such as “respect for differences”, the “land as kin”, “patience”, etc.
Finally, the audience split into small groups. They were each given a case study with details from real-life incidents where consultation was or was not done, and to varying degrees of success. The task was to discuss their case study and then report back to the larger group: one, what they as planners felt would be the “best practice” in these circumstances, and two, what they thought would be the constraints in their role as planners in these circumstances. The resulting general discussion led to some fruitful questions. How do you go about creating a genuine relationship? What about the potential avalanche of information that a municipality can unleash on an unsuspecting community? Where can the forbearance be found with slow responses from Aboriginal communities when the province is encouraging faster application turnarounds? There are no standard answers, but the Mayor of a municipality and the Chief of a First Nation might consider playing a round of golf, just to get acquainted. A planner might attend the local pow-wow simply for cultural awareness. A municipal Counsellor and the planner might make a deputation to a neighbouring Chief & Council essentially to introduce themselves, to express a willingness to collaborate on issues of mutual concern, and provide contact information. These are simple tasks, but if one has never done them before they can seem daunting. The results may not even be fruitful. Is the effort then worthwhile? An encouraging answer comes from the Mississaugas of the New Credit. They used to live along the “old” Credit River, but were forced to move so settlement could occur where the City of Mississauga was eventually built. This may not seem like the basis for a working relationship, but every five years the City makes a deputation to New Credit to formally thank them for the use of their name. It does not solve all disputes, but it does provide the basis for peacefully discussing them.
Next Steps
There is demand for more information, even skills on this topic; thus an “advanced tutorial” is being contemplated. It may involve taking municipal officials from all over the traditional territorial jurisdiction of a particular First Nation or Aboriginal community and paying them a visit. Based on the feedback from participants it may also include letting planners talk with each other about the challenges they are facing in this regard; perhaps adding more Aboriginal representatives to enrich the dialogue. What is certainly needed is a success story or two; examples of when things went right: a development proposal, an E.A., a municipal work, etc. which illustrate when consultation was done well and the practical lessons that can be learned. There was also some interest in how the process can be changed and who would do it, what tools would facilitate engagement, and whether Aboriginal interests could be mapped for municipal issues.
Legalities
Several concerns where expressed about the legal standing of the issue and its policy implications. The organisers had considered inviting a lawyer to speak, but had decided against it since we wanted to focus on the relationship building aspect of the topic. The legal response to date has typically been of the “let sleeping dogs lie” variety, sometimes of the “we don’t have to talk to you since you’re not within one kilometre of us” ilk, and, gratefully only rarely of the sort which led to the death of Dudley George. Such approaches ignore the silent suffering Indigenous communities endure because we have forgotten our relationship with them. Ron Williamson reminded us that solid legal frameworks might actually be useful in improving this relationship. A metaphor like marriage comes to mind: a cultural institution reinforced by legalities. Yet a mere adherence to legal obligations does not constitute a marriage. Those are only meant to bolster a relationship that already exists. If “somebody” forgets to pick up bread & milk on the way home from work, do you have a heart-to-heart with your spouse, or call a lawyer? If it’s the latter, perhaps you are no longer in a relationship. Here the metaphor breaks down, since neither the original inhabitants of this land nor recent arrivals are going anywhere. We can only ignore each other for so long.
One of the participants asked a salient question, as to whether First Nations have a “Duty to Consult” with municipalities. Technically, no; ideally, yes. They should be talking about issues of mutual concern all the time, but the current power differential is often too great. However, there have been at least two attempts at this, both involving communities represented in the proceedings, New Credit and Moose Deer Point. Each has a notification protocol with neighbouring communities and agencies that might serve as examples of Aboriginal/municipal co-operation in Ontario. One direct outcome from the workshop was the networking between the Township of Georgian Bay and Moose Deer Point First Nation. At the time of publication, a commitment has been made by the Township to submit future zoning applications to the protocol.
Future Endeavours
The Aboriginal Consultation Initiative is hoping to run further workshops like this one in other parts of Ontario. If so, ACI will be seeking other OPPI Districts to help facilitate the cause. They are also planning a workshop for Aboriginal consultation workers and First Nation officials that need to understand how the world of municipal planning functions. An exciting prospect on the horizon is a round-table organised by ACI involving key players from both the Indigenous and non-Indigenous community: Aboriginal consultation staff, academics, developers, municipal, regional, and private planning practitioners; and practitioners in associated professions, to begin addressing underlying issues such as:
- Exercising and respecting Aboriginal and treaty rights - how municipalities can become genuine partners with Aboriginal communities, based on friendship and trust
- Government policy - and how documents such as the Provincial Policy Statement or the Planning Act can proactively articulate and support such engagement
- Capacity building - how Aboriginal communities can build the necessary response mechanism that matches the resources and professional skills at the disposal of developers and municipalities, and how the latter parties can develop the appropriate knowledge base to engage in this dialogue and collaboration
- Institutional memory - how to ensure that the growth of this knowledge becomes an ingrained part of the field of planning
Another aspect that needs more research is the development of an analytical tool that could accurately map the extent of traditional territories, overlapping jurisdictions, the specific planning concerns of both Aboriginal communities and municipalities, areas of special concern, provincial priorities, etc. Some efforts are underway, but the results are preliminary thus far.
The organisers take inspiration from the great interest of the participants. While most thought the workshop provided a good learning experience, they also felt that there was still so much more to know. The history of this country is one of an ongoing relationship between its Indigenous and non-indigenous peoples. It has become frayed over the years, often around issues of land use. However, our profession has the basis for an improved relationship; we both care deeply about land. It is our hope that Planners can play a proactive role, perhaps even provide leadership, in an earnest and engaged shift towards reconciliation.