(Residents of Attawapiskat launched an ice road blockade last year against a De Beers diamond mine over lack of consultation. APTN/Photo)
By Jorge Barrera
APTN National News
The federal department of Aboriginal Affairs says faces a “high risk” it may not be able to manage expectations around consultation, internal documents show.
The documents were obtained under the Access to Information Act by Shiri Pasternak, a post-doctoral fellow at Columbia University in New York City, and provided to APTN National News.
According to the draft and final version of the department’s 2011 Corporate Risk Profile, Aboriginal Affairs found it faced a “high risk” of being unable to manage expectations on consultation.
As a result of Supreme Court decisions flowing from challenges based on Section 35 of the Constitution, First Nations need to be consulted on matters that impact their Aboriginal rights. This encompasses everything from new legislation to planned developments on traditional territories.
“During program design and creation of agreements, First Nations feel they are not treated like an official party whose feedback is solicited,” said the department’s final version of its 2011 Risk Profile. “When First Nations are consulted on a matter by the regions, they do not see their feedback reflected in the final decision or product.”
The risk profile said that the department is not always clear with First Nations on how much influence they actually have over final decisions.
“Expectations with First Nations are not always set up-front about how much influence the First Nation can have on a decision that must be made within federal law,” said the risk profile.
In a draft version of the risk profile, the department said a failure to consult could damage its relationship with First Nations and lead to costly court battles.
“If Aboriginals do not feel that they are being consulted, they may not fully participate in future initiatives and/or this may harm the department’s relationship with them,” said the draft risk profile. “If the department does not consult Aboriginal partners when it is prescribed by law, it may result in a court case.”
The department also believes that First Nations’ expectations around consultation go beyond what is required by law.
“Where a program makes a change and there is no legal obligation to consult, Aboriginal parties may have inflated expectations of their input into these decisions,” said the draft risk profile.
The department, however, appears to be using the UN Declaration on the Rights of Indigenous Peoples as a guide to determine when to consult.
“The UN Declaration of the Rights of Indigenous Peoples outlines instances where it is not appropriate to make a decision without consultation and outlines when consent is required,” according to both the draft and final versions of the risk profile.
While initially refusing to sign on to it, the Harper government endorsed the declaration with the caveat that it officially considers it an “aspirational document.”
Aboriginal Affairs Minister Bernard Valcourt’s office referred questions on the risk profile to the department.
Department spokesperson Michelle Perron said the risk profile is a “prudent management exercise that all departments are required to take.”
Perron said Treasury Board requires all departments to “identify asses and manage its risks.”
According to the department’s profile, however, it’s very reason for existing faces a “high risk” of failure.
“As the Aboriginal population grows, the demand for services also increases and (the department) is unable to respond.
Funding cuts will make it more difficult to respond to Aboriginal needs,” according to the department’s Corporate Risk Profile from 2011. “As (First Nations) become impatient with outcomes, they often move disputes into the courts in order to increase the pace of resolution. Courts increasingly ruling that the federal government is not living up to the ‘Honour of the Crown’ obligations.”
The same observation appeared in 2012.
“Growth in the Aboriginal population outpaces (the department’s) funding growth making it increasingly difficult to respond to the needs of Aboriginal communities and people,” said a draft listing of the department’s risks from June 20, 2012.
The observation was listed under the heading, “Risk 7: Aboriginal Relationship; (The department) will not build and sustain strong, productive and respectful relationships with Aboriginal people, communities and organizations to contribute to the delivery of its mandate.”
@JorgeBarrera
