The Government of Newfoundland and Labrador recently released an Indigenous consultation policy that has wide-ranging implications for proponents of land use and resource developments and projects, and also applies to wildlife decisions.
The policy, which provides the basis for the development of guidelines to come, lays out new, more stringent roles and responsibilities for project proponents. The stated goal of the new policy, developed by the government through consultation with the public, Indigenous organizations and industry stakeholders, is to ensure the minimization of any potential adverse impacts of projects and developments on the asserted rights of Indigenous groups.
As a result of this policy and the guidelines to follow, land and resource use project proponents will have new procedural and financial obligations to contend with that are unprecedented in Canada.
Greater burden of consultation
The government of Newfoundland and Labrador foresees proponents benefiting from the expedient and transparent knowledge of any potential impacts of their project for stakeholders. However, proponents will now also be required to shoulder a greater amount of the burden of Indigenous consultation and accommodation associated with their applications, a greater share of the costs associated with the actual consultation process, and the costs of any potential impacts on Indigenous groups.
While the government will be involved in determining which Indigenous bands and groups have potentially affected asserted rights for any given project, it will not necessarily be directly involved in the actual Indigenous consultation process.
Instead, the government expects proponents to follow the policy and guidelines in their consultation process with Indigenous groups with the goal of resolving any issues that arise. Proponents will be asked to provide support and capacity funding for consultation as “reasonably required” by Indigenous groups.
In terms of the timeline of consultation, proponents will be required to begin consulting with Aboriginal groups at the earliest stage of the application process.
Documenting the Indigenous consultation process
Proponents must document the entire consultation process, as well as how they propose to deal with any issues raised by stakeholders. This documentation could form part of the province’s case that it has satisfied the crown’s duty to consult with Aboriginal groups on land, resource and wildlife issues.
The provincial government will develop compliance monitoring mechanisms to ensure proponents are acting in accordance with the policy and guidelines.
The government also expects both parties to continue to exchange relevant information regarding both the proponent’s application and the Indigenous group’s asserted claim throughout the process. The expectation is that both parties will have “meaningful and good faith discussions” on all issues.
In short, it will become imperative that all discussion and input regarding a project is well documented, as this information will be shared with both Indigenous groups and the provincial government.
With the burden shifting to proponents and the fact that the process will become increasingly scrutinized, project developers are turning to indigenous communities consultation software in order to fulfill the government’s requirements in a timely and efficient way.
These regulatory changes may seem daunting, but they do mean greater control over the consultation process for project proponents. And with the right digital tools, the consultation process can be easily managed.