Consultation is not consent: how to record a nation's position accurately

When a major project is announced in Canada, the photographs usually show everyone who was in the room: ministers, company executives and, often, leaders of First Nations whose territory the project would cross. It is natural to read those pictures as a sign of agreement. This fall, a series of statements from First Nations leaders made the point that being present and agreeing are two very different things, and that point matters as much for an organization's engagement records as it does for the news.

On October 1, Prime Minister Mark Carney and Alberta Premier Danielle Smith went to Fort McMurray to announce that the Pacific Link oil pipeline would be the first project listed as being in the national interest under the federal Building Canada Act. Treaty 8 Grand Chief Trevor Mercredi stood on stage behind them. Five days later, in comments carried by APTN News, he explained that "our presence should not be interpreted as support for the project." He added that the Indigenous advisory council he sits on, which advises the federal Major Projects Office, had not been asked whether the consultation timeline was adequate.

Several nations, one consistent message

Mercredi's comments were part of a wider pattern. On the day of the announcement, Athabasca Chipewyan First Nation (ACFN) in northern Alberta wrote to its members about the designation. Its Chief and Council said the listing does not replace meaningful consultation, that the outcome is not predetermined, and that "participation in these discussions does not constitute ACFN's consent to the proposed pipeline" (ACFN). The statement is carefully worded. It does not announce opposition to the pipeline. What it does is separate taking part in discussions from agreeing to the result.

A week later, Tk̓emlúps te Secwépemc, based in Kamloops, described its own position in similar terms. Chief Rosanne Casimir said the nation had not taken a position for or against Pacific Link (Castanet). It had met with Trans Mountain once in six months and was considering the federal offer of at least a 10 per cent ownership stake for Indigenous communities, but it wanted to understand how that figure was set, how the arrangement would be governed and what it would return before deciding anything. That is a considered, conditional position, and it deserves to be recorded exactly as it was expressed.

The same idea came up in the mining sector. Ahead of a September panel at the Precious Metals Summit in Colorado, Kwagu'ł hereditary chief David Mungo Knox (Walas 'Namugwis) sent investors a message about projects on his people's territory on the BC coast. A permit, tenure, licence, mineral claim or approval, he wrote, is not his people's consent, and he summed it up in two sentences: "Do not mistake a meeting for agreement. Do not mistake consultation for consent." (MINING.COM)

Ermineskin Cree Nation in central Alberta added another dimension in early October, calling on nations to define for themselves what meaningful consultation and consent look like. As its statement put it, "Governments and industry should not be deciding that standard for us." (Ermineskin Cree Nation)

Taken together, these statements give project teams a clear and practical message. A nation's participation is valuable and should be recorded carefully, and its position on a project is something only the nation can express.

How the law separates the two

Canadian law has kept these ideas distinct for a long time, which makes the job easier. The Duty to Consult is the Crown's legal obligation to consult Indigenous peoples, and where appropriate to accommodate their concerns, when a government decision could affect their rights. In its landmark 2004 decision in Haida Nation v. British Columbia, the Supreme Court of Canada explained that this process does not give a nation a veto over what can be done with land while a claim is unresolved. What it requires is a meaningful process of balancing interests (para. 48).

Free, prior and informed consent comes from a different source. It is a principle set out in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), whose Article 32 calls on states to consult in good faith in order to obtain a nation's free and informed consent before approving projects that affect its lands and resources. How far that principle reaches in Canadian law is still being worked out in the courts, as the Federal Court of Appeal's decision in the Kebaowek case on October 16 shows. In BC, where the provincial Declaration Act has become an election issue, The Narwhal explains that a nation's consent or refusal does not make it the statutory decision-maker; provincial ministers still make permit decisions.

Neither framework treats attendance at a meeting, or at an announcement, as support. Where the two ideas tend to blur is in everyday reporting. A quarterly update that says a team "engaged with" a nation, or a slide that puts a tick beside a nation's name, can easily be read by others as more than it is. Reports that describe participation as participation, and that quote a nation's position only from its own words, keep everyone working from the same facts, from the project team to the executive table.

Three kinds of fact, each in its own place

The most reliable way to keep this straight is to build it into the structure of the record itself. A strong engagement record holds three different kinds of information and keeps each one in its own place.

The first is participation: the meetings that took place, letters sent and received, site visits, information shared and capacity funding provided. These are facts about the engagement process, and your team can record them directly as they happen.

The second is the project's regulatory progress, such as a designation, a permit, an approval or an equity offer. These are facts about the project and where it stands with regulators. As Knox pointed out, none of them speaks to whether a nation consents.

The third is the nation's stated position. Unlike the other two, this is something only the nation can provide, so it should come from the nation's own statements and carry the date, the name of the person who spoke for the nation, and the letter, minutes or public statement it came from. Positions often evolve as a project develops, so the history of those statements is just as useful as the most recent one. Where a nation has not taken a position, "no position stated" is the accurate entry. For Tk̓emlúps today it is exactly right, and an honest "not yet" is far more useful to everyone than a guess.

Recording who spoke for the nation

Attendance records benefit from the same care. On the day of the Pacific Link announcement, Sturgeon Lake Cree Nation Chief Sheldon Sunshine said that no one authorized to represent the nation had attended, and that the nation does not support the project (APTN News). It is a helpful reminder that who was in the room and who was authorized to speak for a nation are two separate facts. A good engagement log captures both, so that a name on a sign-in sheet and a decision by a nation's leadership are each recorded for what they are.

StakeholderHub is designed around this distinction. A nation's Support Status is its own field with its own history. Logging a meeting doesn't change it, and neither does adding a permit or a commitment. It changes only when someone updates it deliberately, and every change is recorded, so the field always reflects what the nation has actually said.

What to do this week

A few small steps will bring most engagement records into line with this approach:

1. Read your last three status reports for words like "support," "buy-in" and "on board," and link each one to a dated statement from the nation. Where a phrase is really describing participation, reword it to say so.
2. For every nation on an active project, record its current position in its own words, with the date and the source. Where there is none yet, write "no position stated."
3. Add a second column to your attendance records so they show both who attended and who spoke on the nation's behalf.
4. Before your next public announcement, agree with your communications team on how to describe the nations taking part, in words those nations would recognize as their own.