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INSTRUCTIONS: read 1 of the  articles and answer the question. Also, respond to one of your classmates answers on a different article.

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INSTRUCTIONS: read 1 of the  articles and answer the question. Also, respond to one of your classmates answers on a different article.

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Consultation with First Nations is a necessary part of doing business on First Nation treaty or traditional land. Most levels of government and business leaders have accepted that consultation with First Nations is a legal, necessary and important aspect of doing business with First Nations.

Some First Nations have developed guidelines and protocols for consultation. Some provinces have developed "toolkits" for consultation. What there isn't is a template for consultation - each Nation and each project requires a consultation process tailored to the situation.

While a template for consultation does not exist, there are some common, respectful considerations that will assist a company in its consultation.
1. Failure to conduct due diligence on history, culture, political structure and world views of the community(ies) you hope to work with
There are over 600 First Nations in Canada - each one has a distinct history, relationship with the Crown, culture and world views. Failure to recognize cultural diversity and to assume that all First Nations are the same is disrespectful and a sure sign that a consultant is not conversant with First Nation history.
2. Failure to engage at the very onset of a project
Don't delay contacting the community on whose traditional or treaty lands you would like to develop your project as this is both disrespectful and unwise. Introducing your company with a full set of plans is not a good way to initiate a relationship. Contact the community early and maintain a consistent communication system. Don't just contact the community when you need approval for a permit. Your intent should be to build a positive relationship that will continue beyond the end date of your project.
3. Lack of transparency
All communications should be honest and transparent. If there are delays or other issues, share that information.
4. Sending the wrong people to represent your company
The "face" of your company should be selected carefully. Don't send someone who considers First Nation consultation a means to an end. Also, don't send a junior person to meet with the Chief, especially in the initial meetings. The head of the company should make him/herself available to meet with the head of the Nation as soon as is possible, if requested.
5. Sending someone who is not familiar with the consultation process or frequently sending different people
Chief, council and economic development departments are all very busy and don't have time to educate your staff. If there is a change in the consultation point person for the project, ensure the replacement person is fully up to speed before they go to the community.
6. Failure to understand if a community does not have the capacity for effective negotiating strategy, or worse, recognizing the situation and trying to take advantage of it
Some First Nation communities are very small and have very young populations with few community members who have the experience or knowledge on how to negotiate an effective agreement with a resource company. It is very shortsighted of a company to take advantage of this situation. If a project hits some sensitive points with the community, the terms of the agreement will come under legal scrutiny. Roadblocks or legal embargoes on projects are not good for anyone.

7. Failure to understand the collective rights of the community and how the community is structured for decision making

This understanding is critical, and leads back to the first point in this article. Companies need to know this prior to sitting down with the leadership of the community.

8. Failure to engage holistically with the community
At some point consultation must be with the whole community, especially on big projects. Your project will have an impact that extends beyond the Band office therefore your company has a responsibility to engage with the entire community. This can be achieved, for example, by attending and supporting community initiatives and school events; creating a scholarship or bursary; working with the community to understand what their needs and desires are in terms of a legacy project - there really is no limit on how a company can constructively contribute to a community, perhaps attending pow wows and other events.
9. Failure to take the need for consultation seriously
Consultation should not be viewed as yet another box to check off on the permitting path. It is a real and necessary part of your business plan. You should develop a goal of consulation from the community's perspective not company or government if you want to be sucessful.
10. Lack of working knowledge or interest in the impact of colonization and residential schools
This article was written in the aftermath of the Truth and Reconciliation Commission report on residential schools (June 2015). Since the release of that report, there has been a heightened awareness on the part of non-First Nation people about the government's goal of assimilation, colonization, the horrors of the residential school system, and the ongoing intergenerational impact of colonization and residential schools. Everyone who works with First Nations should be aware of this aspect of Canadian history and its ongoing impact.

11. Failure to have a working knowledge of the key court cases that guide First Nation consultation; failure to realize that consultation is a legal obligation owed by the Crown but frequently downloaded to companies

At the very least, consultants should be familiar with the following court cases:

Delgamuukw
Sparrow
Haida

Taku River Tlingit

Marshall; Bernard

Rio Tinto

West Moberly
Tsilhqot'in
12. Failure to prepare your workforce, from the top down, for working effectively with First Nation communities and individuals

If your intent is to build respectful, effective relationships with the community(ies) you hope to work with, and to build a respectful, effective consultation program, then having the whole team - from the president on down to the person who answers the phone - take Aboriginal awareness training is an investment in that intent. It is also critical that each new employee take the training, and that the whole team take refresher courses. Refresher courses are recommended because someone inexperienced in working with First Nations will not absorb the information differently than someone who is actively working on the consultation file.Here's an article on what to look for in Aboriginal awareness training.

We hope this compilation on some of the common mistakes made in First Nation consultation is helpful. Here are three free ebooks to help you build your understanding and knowledge of working effectively with Aboriginal Peoples®.

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12 Common Mistakes in First Nation Consultation

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Consultation with First Nations is a necessary part of doing business on First Nation treaty or traditional land. Most levels of government and business leaders have accepted that consultation with First Nations is a legal, necessary and important aspect of doing business with First Nations. Some First Nations have developed guidelines and protocols for consultation.

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In 1982, when section 35 was placed in the Canadian constitution, the feeling in Indian Country was that it gave us the right to go to court.

Section 35 is the famous section that recognizes and affirms existing treaty and Aboriginal rights. But that's all it says. Our rights have not been defined and instead First Nations have been going to court and winning cases that are defining the scope of our jurisdiction and Treaty Rights.

But sadly it's a long drawn out costly process fraught with danger. That danger was felt this week when the Mikisew Cree from Alberta appealed their case to the Supreme Court.

The case began in response to the omnibus bill that the Harper government put in place in 2012. These budget implementation bills were an affront to democracy because they were more than 400 pages long and made sweeping changes. Bill C-38, for example, abolished 74 pieces of legislation alone.

This was also the genesis of the Idle No More movement. Alarm bells were going off all over Indian Country and the people took their concern to the streets and shopping malls across Canada.

The Mikisew Cree decided to take the case to the courts stating that the Harper government breached its duty to consult when they presented bills C-38 and C-45 that included environmental legislation that they felt breached the government's duty to consult.

The case was ruled in the Cree's favour in federal court and overturned in the court of appeal and now the Supreme Court has upheld the appeal court's decision.

The Supreme Court upheld the lower court's ruling that the government doesn't have a legal duty to consult Indigenous groups when developing legislation that might impact treaty and Aboriginal rights.

The news media has framed this decision as a setback for First Nations and, while it wasn't the decision we wanted, the ruling doesn't really change anything. We never had a legal right to be consulted when the federal government was drafting legislation.

However, governments have a political and moral responsibility to consult with First Nations when developing legislation that has the potential to have a negative effect on our treaty and Aboriginal rights. To ignore our rights will be at the peril of the federal and provincial governments. They will become embroiled in lengthy and expensive court actions where they can't control the outcome.

The Supreme Court previously ruled that a duty to consult exists when a major project is planned; Aboriginal people must have adequate consultation and, where possible, be accommodated.

In the case of the Trans Mountain pipeline, the federal court ruled that Indigenous people were not adequately consulted and the project has been put on pause.

The Supreme Court also upheld the constitutional practice of upholding the honour of the Crown. This important principle is a little-known practice that exists in the recognition and implementation of our treaty rights.

The principle of the honour of the Crown is that any agreement conducted in the name of the Crown must not besmirch the Sovereign's good name. The Supreme Court has recognized this principle previously ruling that treaties must be interpreted generously and where ambiguity exists must be interpreted in the favour of the Indigenous party.

This issue is not over. The root of the problem exists with the fact that the federal and provincial governments refuse to recognize First Nations government as a third form of government in Canada. So far they are unwilling to share power and resources with First Nations and continue the colonial relationship embodied in the Indian Act.

According to the treaties and our Aboriginal rights, we maintained the capacity to govern ourselves. In Canada currently, we have two forms of government outlined in the British North America Act. Section 91 and 92 outline the areas of responsibility of the federal government and the provinces.

First Nations government existed prior to Confederation so we have all the responsibilities of the provinces and we can pick and choose federal responsibilities that are to our advantage.

This will take us a long way past a Supreme Court decision that tried to define the scope of the power of our First Nations governments.

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Cuthand: Government must recognize treaty rights

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In 1982, when section 35 was placed in the Canadian constitution, the feeling in Indian Country was that it gave us the right to go to court. Section 35 is the famous section that recognizes and affirms existing treaty and Aboriginal rights. But that's all it says.

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Why can't Ottawa get Indigenous consultation right?

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Why can't Ottawa get Indigenous consultation right?

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After weeks of consideration, the Trudeau government recently said it would not appeal the Federal Court of Appeal's decision to quash the approval of the Trans Mountain pipeline expansion, and would instead further consult Indigenous groups for an undetermined amount of time.

It seems the government's approach to Indigenous consultation is try and try again. This time, the government hopes that appointing former Supreme Court justice Frank Iacobucci to oversee the consultation process will get the process "right." Remember, this latest move comes after the government sought "deeper consultations with Indigenous peoples" in 2016.

Undoubtedly, conducting meaningful consultations with Indigenous communities is important. However, a trial-and-error approach is fraught with uncertainty and potential delays. But there's another way. Instead of this flawed approach reliant on judicial interpretations, the government can pass legislation to better define what "duty to consult" actually means.

As noted by Tom Flanagan, professor emeritus of political science at the University of Calgary and senior fellow at the Fraser Institute specializing in Aboriginal issues, the government has the ability to clarify "duty to consult" but has yet to do so.

In the 2004 Haida Nation decision, the Supreme Court created the "duty to consult and accommodate" Indigenous groups regarding development projects (including pipelines) on their traditional territories. However, that right to be consulted was not entrenched in any constitutional document or federal legislation. Instead, the court inferred it from the "Honour of the Crown." In fact, the language of the law is particularly vague and has created tremendous uncertainty. And yet, Parliament has passed no legislation to define what the duty to consult actually means. Both the current and previous federal governments failed to clarify its meaning and repeatedly fell short on Indigenous consultation.

Instead of providing clarity on how Ottawa should consult for future projects, and thereby streamline the regulatory processes, the Trudeau government is moving in the opposite direction. More specifically, the government is adding even more uncertainty to Canada's already onerous regulatory process with Bill C-69.

The bill, which is currently under Senate review, will overhaul the entire assessment process for major energy projects by replacing the National Energy Board with a new energy regulator and establishing an Impact Assessment Agency for new projects with additional new review requirements. The bill will add a large number of subjective criteria - including the "social" impact of energy investment and its gender implications - to the review process. Despite good intentions to streamline the process, the proposed changes will make the regulatory system more subjective and uncertain.

Not surprisingly, some academics and prominent industry leaders are raising concerns about the implications of Bill C-69 and what it might mean for Canada's investment climate. In response to Bill C-69, Hal Kvisle, former CEO of TransCanada Corp., called the bill a "devastating piece of legislation" adding that he doesn't "think any competent pipeline company would submit an application if Bill C-69 comes into force." Kvisle's comments should be sobering for the federal government as Canada's energy sector is already facing significant investment challenges.

The reality is that the federal government is still grappling with how to get Indigenous consultations "right" and is simultaneously increasing uncertainty and delays for major energy projects. Clearly, the federal government has failed to address the real issues with Canada's regulatory system - and is actually making things worse with Bill C-69.
Elmira Aliakbari is associate director of natural resource studies and Ashley Stedman is a senior policy analyst at the Fraser Institute.

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Column: Why can't Ottawa get Indigenous consultation right?

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After weeks of consideration, the Trudeau government recently said it would not appeal the Federal Court of Appeal's decision to quash the approval of the Trans Mountain pipeline expansion, and would instead further consult Indigenous groups for an undetermined amount of time.