[co-author: Rita Cherevychko - Articling Student]
COVID-19 is affecting how the Crown and proponents consult and engage with Indigenous peoples. Like many governments and organizations, Indigenous communities are taking actions to address COVID-19, including by closing offices and redirecting resources to help manage the community’s response to the pandemic.
In this blog, we outline the measures taken by the governments of British Columbia and Alberta, who have issued guidance on consulting during the COVID-19 pandemic. The guidance documents are primarily directed toward government decision-makers, but are informative for proponents.
The Crown's Duty to Consult Continues During COVID-19
The Crown continues to have a duty to consult Indigenous peoples when a potential Indigenous or Treaty right may be adversely affected by Crown conduct regardless of any challenges caused by COVID-19, including limitations around the parties' ability to physically meet. Both the Crown and proponents must adapt their consultation and engagement practices to meet the current challenges while still ensuring that Indigenous peoples are meaningfully consulted and accommodated. Inadequate consultation can further delay a project in the longer term.
The Declaration on the Rights of Indigenous Peoples Act and the Draft Principles that Guide the Province of British Columbia's Relationship with Indigenous Peoples are additional considerations guiding the Crown in right of British Columbia's action. There are similar guidelines at the federal level, with the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples and the Crown's intention to introduce similar legislation to British Columbia regarding the United Nations Declaration on the Rights of Indigenous Peoples.
British Columbia's Consultation Guidelines
On March 27, 2020, the BC Ministry of Indigenous Relations and Reconciliation published a Government Consultation Bulletin, providing interim guidance for statutory decision-makers in their consultation practices and advising proponents on suggested responses.
The key points outlined in the Bulletin include:
- In-person consultation meetings should be suspended or postponed for the duration of the provincial health authority's social distancing recommendations. Where possible, in-person consultation should be replaced by virtual tools.
- Timelines may need to be extended or deferred based on a project’s priority and time-sensitivities, especially where so requested by the Indigenous community.
- Community-specific updates, such as office closures and Indigenous communities’ ability to engage in consultation processes will be posted on Profiles of Indigenous Peoples (PIP). PIP should be consulted before contacting the Indigenous community.
Agencies are advised to "critically review" any new consultation processes and initiate consultation based on priority and time sensitivities. Considerations include the nature of the proposed activity (e.g., whether it supports essential services or a health a safety issue), the capacity of the Indigenous community to meaningfully participate in consultation activities, the stage and extent of consultation to date, concerns raised to date, and the nature of the potential impact on Indigenous peoples.
For communities facing capacity challenges, provincial agencies are advised to extend timelines where requested and defer decisions where appropriate.
Alberta's Consultation Guidelines
On March 26, 2020, the Government of Alberta announced that consultations will continue, and consultation pauses that are normally triggered by emergency situations or Indigenous communities' office closures will be considered on a “case-by-case basis for Indigenous communities that request it of the Aboriginal Consultation Office.” While approximately 30 Indigenous communities initially sought consultation pauses, as of the date of this blog, the consultation timelines have since been reinstated.
Instead, Indigenous communities can now apply to Alberta's Consultation Office for consultation timeline extensions. On April 20, 2020, Alberta posted timelines for consultation extensions, which offer extensions of up to 10 days for Levels 1 and 2 consultations, and up to 15 days for Level 3 consultations.
The Aboriginal Consultation Office states that consultation pauses are still available to Indigenous communities that need them "as a last resort".
For proposed projects where all procedural aspects of consultation were completed prior to initiation of a consultation pause, proponents may proceed with submitting records to the Alberta Consultation Office for an adequacy review. However, any additional consultation required as directed in an ‘Adequacy Review Information Request’ may be subject to a consultation pause or extension where granted.
In addition, the Alberta Utilities Commission (AUC), which has separate consultation requirements than the Alberta Consultation Office, announced interim changes to its participant involvement program intended to mitigate the risk of COVID-19.
Considerations for Proponents
COVID-19 will likely result in delays to any previously ongoing, or newly required, consultation and engagement activities and decision-making, including in obtaining project permits or in advancing regulatory hearings.
In the interim, proponents may consider the following if they are required to progress consultation and engagement:
- Before attempting to engage, verify whether the Indigenous community has issued any guidance regarding their key contacts, capacity, and operations during COVID-19, which may be posted on PIP or individual communities' websites, including social media.
- Coordinate internally with those employees, advisors and contractors that have any contact with Indigenous communities to avoid duplicative outreach.
- To the extent that proponents are able to reach their contacts in Indigenous communities, proponents should work with the Indigenous communities to determine:
- whether the Indigenous community has capacity to engage and their preferred method of engagement. Such engagement could be facilitated through video conferencing and virtual town halls;
- if there is no capacity, whether the Indigenous community would like assistance, and whether the proponent or government can assist with improving capacity; and
- how to maintain regular—yet respectful—contact.
- Keep governments informed of their efforts and maintain a record of communications.
- Continue to assess the changing landscape.
Where the proposed project is of a non-essential nature, there is no urgency to the proposed decision, significant concerns are expected to be raised, or the decision may have a significant impact on Indigenous peoples and the Indigenous communities are unable to engage, consider postponing engagement activities until the pandemic is in a more manageable stage and Indigenous communities' capacity allows for meaningful engagement.
Proponents may also wish to consider taking measures now to meet the longer-term objective of consultation and engagement. Proponents may consider, the extent to which they are able, supporting Indigenous communities and non-Indigenous communities during COVID-19, including by providing surplus medical supplies, protective equipment, and other resources. The actions taken during times of crisis can support long-term mutually beneficial and respectful relationships.