The National Energy Board (NEB) has once again recommended the expansion of the Trans Mountain pipeline, provided additional measures are taken to ensure tanker safety in the environmentally sensitive Salish Sea. Anyone following this ongoing issue would be compelled to ask: What then is the point of consultations that the Government of Canada is separately undertaking with 117 Indigenous communities along the pipeline route? Now that the NEB has reconsidered and re-approved the proposal, is there a purpose to the consultations?

The answer, it seems, is to make sure that the federal Crown ticks its consultation box: the decision has been made, and now we need to go through the motions. Of course, the major reason the NEB had to re-evaluate the Trans Canada pipeline was the shambolic, mechanical and ineffective consultation process conducted earlier, as outlined in last year’s Federal Court of Appeal ruling. The Crown now appears to be repeating that approach to consultation, and we can expect the same result: another court challenge, another delay, yet another round of consultations.

And this mess of a consultation process itself comes on the heels of the now abandoned federal Recognition and Implementation of Rights Framework. The framework intended to create the legislative possibility of the federal government entering into political and economic relationships with aggregates of existing Indian bands, so that these federated groups of Indigenous communities could provide culturally appropriate social services like child welfare. Other parts of the proposed legislation would have created the opportunity for sector-specific agreements on economic matters such as forestry and fishing. Announced in February 2018, the proposal was for all intents and purposes dead by September, when the Assembly of First Nations (AFN) said that there were deep flaws in the consultation process, and that the whole process should be renamed the Protection and Affirmation of Rights Framework.

As an Indigenous person, a former government official, a lawyer and a legal scholar, none of this is news to me. Part of the problem is the way we talk about issues between Indigenous people and the federal and provincial Crowns. Take, for example, the incredible difficulty that appears to arise around the constitutionally mandated consultation of Indigenous people when government action affects Aboriginal and treaty rights. Part of the difficulty emerges because we don’t use the right words. In fact, legal precedents require not merely consultation, but consultation and accommodation. If the Crown merely commits to a “consultation” process without even bothering to mention the accommodation, how can anyone expect a good outcome? How can the process ever be anything more than ticking the consultation box if we can’t even bring ourselves to mention the (also constitutionally mandated) accommodation that must accompany the consultation?

To treat another party as an equal partner is to begin by respecting difference, and so perhaps the place to begin is not at the table but to ask, “do you normally negotiate these things around a table?”

The AFN’s position paper on the federal rights framework emphasizes that First Nations were promised “full partnership” in the engagement process, and that they must be treated as “equals as peoples and nations.” There is nothing wrong with wanting a seat at the table when the issue is your long-term survival as a cultural group, and liberal democracy prides itself on treating all persons as equals. But being a full partner and being treated as an equal does not necessarily equate to getting a seat at the table. To treat another party as an equal partner is to begin by respecting difference, and so perhaps the place to begin is not at the table but by asking, “Do you normally negotiate these things around a table?”

First Nations representatives have had to assimilate themselves to the process of negotiation: we wear suits, we bring lawyers, we sit at a table. No one, at least since Confederation, has asked Indigenous people, “By what process would you come together to discuss important issues and find an agreement about how to move forward?” That’s the kind of question you would ask of another party who was your equal and your partner in such discussions.

Today, we presume that the way we do things is the way they have always been done. But this isn’t the case. Take something like negotiating a treaty between First Nations and the Crown. Pre-Confederation treaties took months and years to conduct, and they never ended with a document to sign. The treaty was a process to which the British adapted, since they were the new arrivals. The British learned to give gifts, and to make and present wampum belts because the belts served a similar purpose to written agreements: they evidenced an agreement of one sort or another. Indigenous people have not abandoned these traditions; Canada has.

The diplomatic world into which the British entered in the 17th century was a robust system of international law and Indigenous protocols, and it contained a wide variety of technologies to encourage agreements. Consider the Six Nations. Every meeting — whether annual treaty meetings between the full league of the Six Nations and the British, or an encounter at the edge of the forest between a community and a traveller — began with some version of a condolence ceremony. The parties would recognize the need of the other party to be condoled, to hear expressions of concern at loss or other difficulties; wampum belts would used to “wipe away the tears” of the other party, and fragrant smoke would be used on the eyes, ears, mouth and heart, in order to ensure that people spoke clearly and were heard truly. Then presents would be exchanged. The whole process was designed to create a distinctive relationship, where people would sit with one another as equals, and to establish that this process was in fact a partnership. Across the prairies, the peace pipe ceremonies served a similar purpose, and on the west coast, feasting and gift giving is a central feature of Indigenous life.

They arrived at a stale meeting room. When they asked about food, they were told there was no budget for that sort of thing. This was unthinkable to the Mohawk side.

The bringing of gifts, the holding of feasts, the acknowledgment of the circumstances of another party — these are common technologies of relationship building used the world over. One Mohawk lawyer told me that he and members of his negotiating team once got up at 4 a.m. and drove the six hours to Ottawa. They arrived at a stale meeting room. When they asked about food, they were told there was no budget for that sort of thing. This was unthinkable to the Mohawk side. How could anyone invite someone to undertake a long journey and then not feast them upon arrival? How could anyone expect anything to come from that encounter? They couldn’t even agree on what a meeting was, let alone what should come of that meeting.

And so my advice to the federal Crown is to stop your silly business of “consulting.” It’s not working, and never will work. First, because you’re supposed to be focusing on consultation and accommodation, and, second, because you can’t expect to get an agreement when you can’t even bother to learn about the other side’s history and traditions. If you can’t engage First Nations as equals, by bending your meeting process to engage with traditional Indigenous technologies for building relationships, then we can’t expect good results.

If we are serious about mega-projects, or about reconciliation between Indigenous and settler people, then we must be serious about our ideas of respect for others. It’s not enough to get a seat at the table. We need to find out if we even need a table — maybe we just need a blanket on the floor, a few thoughtful gifts and a feast to unite our hearts and minds to a shared task.

Photo: Members of the National Energy Board panel, Murray Lytle, Lyne Mercier and Alison Scott, listen to Councillor Andrew Victor of Cheam as he speaks about traditional evidence from Indigenous groups as part of its review of the marine shipping impacts of the Trans Mountain pipeline, in Victoria, BC on November 26, 2018. THE CANADIAN PRESS/Chad Hipolito

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Douglas Sanderson
Douglas Sanderson (Amo Binashii) est titulaire de la Chaire Prichard-Wilson en droit et en politique publique à la faculté de droit de l’Université de Toronto et a été conseiller principal en matière de politique auprès du Procureur général et du ministre des Affaires autochtones de l’Ontario. Il est le co-auteur de Valley of the Birdtail : An Indian Reserve, a White Town, and the Road to Reconciliation (HarperCollins, 2022). Il est un Maskegon du Clan du Castor de la Nation crie Opaskwayak.

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