Creating the Environment for Consensus


Creating the Environment for Consensus

Through legislation and statements on reconciliation, the Province of B.C. has recognized the need to work government-to-government with Indigenous Nations on environmental assessments. These assessments often generate disputes among parties, including proponents, the Crown, and Indigenous Nations. While the Crown has yet to fully embrace prior and informed consent before approving a project, environmental legislation (like the Environmental Assessment Act, 2018) does provide space for collaborative dispute resolution aimed at reaching consensus.

Nonetheless, provincial legislation remains imposed on Indigenous Nations and dispute resolution processes may themselves import assumptions similar to those that give rise to disputes. Even with a clear intention to find a collaborative process that respects all Nations’ values, assumptions may be embedded in the legislation or in underlying colonial legal practice. Such assumptions might include perspectives impacting the selection of facilitators, timing and location of discussions, inclusion or exclusion of participants, and many more fundamental aspects of process design.

As an example, misunderstandings in environmental assessment processes frequently relate to the scope of project impacts. Project proponents may understand impacts narrowly, believing that they should not be responsible for anything other than direct effects of the project. This approach frequently downplays interactions between a project and pre-existing impacts in the region, and may ignore the reality that impacts do not arise in isolation.

Differences of perspective thus result between project effects described by a proponent and a Nation’s understanding of how they will be experienced. For example, a proponent may determine that a project will affect a local marine environment and will assess impacts locally. This local scope may fail to take into account associated detrimental impacts to harvesting downstream; impacts that are frequently intergenerational. Consensus as to the scope of project impacts is essential to reaching consensus on appropriate mitigation, offsetting, and accommodation measures.

Similarly, disagreements can arise when a proponent identifies only biophysical project effects. However, Indigenous culture, language, and identity are tied to a Nation’s lands, waters, animals, and resources, such that impacts on the former also affect the latter. For a Nation that has fished in a particular location since time immemorial, intergenerational teaching may be negatively affected by a project affecting the location. Language may be tied to certain areas in a territory, which in turn may be permanently altered if the landscape is modified by industry. One cannot assume a Nation may simply move elsewhere and be unaffected.

In looking to resolve these disagreements, process choice and process facilitator may significantly affect the content and scope of discussion. For example, if a facilitator assumes particular topics are relevant (or irrelevant) based on assumptions grounded in the Crown’s legal system and laws, differing perspectives may be allowed no space for discussion. To genuinely embrace consensus seeking, the Crown and proponents must not impose pre-conceived ideas on how to design the process.

When collaboratively seeking to reach consensus, issues need not be confined to the four corners of what may be reviewable by a court or identified by a proponent as “valued components.” Unfettered from assumptions, truly collaborative dispute resolution empowers parties to engage in more open dialogue, leading to solutions neither side might contemplate independently. Ultimately, it is worth the time to develop a flexible process giving voice to Indigenous perspectives and knowledge. The benefits are better projects, improved relationships and, ideally, less adverse impacts on Indigenous rights.