Consultation and cooperation

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Indigenous partners have asked the Government of Canada to provide clarity on the consultation and cooperation requirement of the UN Declaration Act and its relationship to the section 35 constitutional duty to consult and to free, prior and informed consent.

As part of the annual reporting process, Justice Canada asked Indigenous partners and other government departments to share their understandings of five key terms: consultation, cooperation, co-development, co-management, and engagement.

Indigenous partners and government departments articulated these terms in various ways, but there were notable areas of shared understanding. Some terms were seen as overlapping or inseparable. Indigenous partners often insisted on relationship building as equal partners, rather than a paternalistic approach. Additionally, some departments reported using some terms more than others, depending on the subject matter of their work (for example, social development versus natural resources management).

Justice Canada identified key themes emerging from the feedback provided, including (but not limited to) the need for federal organizations to be more:

• realistic and flexible on timelines and scope of requests
• clear on the objectives and expected outcomes
• oriented toward a rights-based or Treaty-based approach
• coordinated to avoid overlapping sessions and consultation fatigue
• respectful of and responsive to Indigenous governance structures, laws, and sovereignty – use a Two-Eyed seeing approach
• prepared to provide all relevant information in accessible formats
• inclusive of Indigenous women and girls, persons with disabilities, youth, Two-Spirit, lesbian, gay, bisexual, transgender, queer, intersex, and other sexually and gender diverse (2SLGBTQI+) persons, and urban and off-reserve Indigenous people
• responsive to requests for information
• ready to secure mandates to advance implementation work together
• consistent in their approaches to consultation
• mindful not to invoke Cabinet confidence when unnecessary
• able to prioritize Indigenous-led processes to ensure participants feel heard and respected
• transparent on who was consulted and how recommendations were incorporated into final reports and decisions
• able to provide adequate and sustainable funding to ensure capacity to participate
• willing to include Indigenous partners in decision-making processes

These themes pertain to the five terms to varying extents. The following sections provide more detailed reflections in support of common understanding on terminology. Further work with Indigenous partners will be required to bring additional clarity to the similarities and differences among these terms and for federal departments to better understand Indigenous partners’ perspectives.

“Though consultation, cooperation, and co-management intertwine, it is necessary to recognize the existing mechanisms are colonial and not reflective of our distinct cultural ways of being.”
Mushkegowuk Council

Indigenous perspectives on engagement

Some Indigenous partners saw engagement as a broad two-way discussion or dialogue on a matter of interest to Indigenous peoples, while others defined it as an all-encompassing continuum of activities. In their view, meaningful engagement includes things like active listening and knowledge sharing, and is intentional, transparent, accountable, and rooted in self-determination. One partner pointed to the challenge of community engagement when most of the members live outside of the community. Another partner pointed to engagement as the first step to fulfilling the UN Declaration. Again, some Indigenous partners highlighted relationship building as a central component to engagement. A few Indigenous partners also expressed skepticism, based on their experiences, with regards to federal departments’ use of this term.

“Indigenous women see the UNDA Action Plan as a tool to hold federal departments accountable for Indigenous women’s inherent rights and to dismantle racism and discrimination under the Indian Act. Indigenous women’s fundamental right to safety must be at the forefront this work. Ontario Native Women’s Association (ONWA) calls for Indigenous women’s leadership, voices, and organizations to be included in the implementation of the Action Plan Measures. Indigenous women hold the knowledge and solutions for how to dismantle systems of harm and implement actions that honour the spirit and intent of the UNDRIP. We are leaders, Knowledge Holders, and we hold sacred responsibilities in our families and communities. We have a rightful role to be included in the cooperation and co-development of the UNDA implementation and strategies to uplift our communities. ONWA continues to advocate for a seat at the table and has done extensive work internationally with the United Nations to advance Indigenous women’s rights and gender equality.”
Ontario Native Women’s Association

Government perspectives on engagement

Similar to some of the views shared by Indigenous partners, some departments understood engagement as a continuum of activities that can encompass consultation, cooperation and co-development. Others viewed engagement, like some of the perspectives shared by Indigenous partners, as building a foundation for long-term relationships with Indigenous partners. A few departments also emphasized that engagement is not a legal requirement, unlike the section 35 constitutional duty to consult. They did, however, recognize its importance, and even its necessity, when a policy, program or legislative initiative may be of interest to Indigenous peoples.

Departments indicated that engagement could include actions such as information sharing, attending events or conferences, discussing needs and experiences, promoting services, and identifying opportunities for collaboration.

Engagement can lead to increased awareness and greater trust and should be an ongoing action to support sustained participation and relationship building.

As an example, the department for Women and Gender Equality Canada (WAGE) engaged with Indigenous partners to discuss their work and priorities, share progress related to the 2SLGBTQI+ Action Plan's implementation, and discuss opportunities for collaboration. This included bilateral meetings with some Indigenous 2SLGBTQI+ organizations and national leaders and representatives as well as the annual meeting of Federal-Provincial-Territorial (FPT) Ministers responsible for the Status of Women and National Indigenous Leaders and Representatives.

Indigenous perspectives on consultation

Indigenous partners viewed consultation as much more than a checkbox exercise, routine exchange of information, or legal requirement. Instead, partners saw themselves central to consultation, grounded in FPIC and their right to self-determination.

In their view, consultation means providing clear and accessible information, ensuring early, ongoing, and meaningful communication where Indigenous peoples feel heard and understood, and offering opportunities to formulate feedback and recommendations within reasonable timeframes. This feedback then shapes a policy, program, or legislative initiative from the earliest stages.

Additionally, Indigenous women’s organizations advocated for a distinctions-based plus approach to ensure their inclusion in the consultation on the issues that impact their daily lives. These organizations also called for culturally safe spaces for conducting consultations with Indigenous women, girls, and Two-Spirit individuals.

At the core, consultation must focus on relationship building with Indigenous peoples and respect their governance structures, laws, and decision-making authority. Of note, these principles also apply to other terminology outlined in this section on the report. Some partners pointed to the need for regional and community-specific consultation. Indigenous partners also insisted that federal departments must respect their decision to withhold consent, or to say "no," on a given initiative. Seen in this way, Indigenous partners views can be honestly integrated into decisions that affect them, and lead to meaningful action.

“Consultation is the process of building consent with Indigenous peoples through open and ongoing discussion. Indigenous peoples must continuously consent to the processes and actions of UNDA implementation and reaffirm this consent through ongoing consultation.”
Pauktuutit Inuit Women of Canada

Government perspectives on consultation

For federal departments, consultation can be related to both the duty to consult associated with section 35 and the statutory obligation to consult and cooperate found in the UN Declaration Act. Of note, while the constitutional duty to consult is limited to adverse impacts, the statutory obligation to consult and cooperate is not. See the Interim Guide for Officials for a more in-depth comparison.

With regards to UN Declaration Act, departments reported consultation activities ranging from sharing information, listening to concerns and perspectives, to openly discussing their plans and priorities. Most importantly, like Indigenous partners, departments viewed consultation as an opportunity for Indigenous partners to influence decision-making on a policy, legislative or other initiative. For example, Correctional Service Canada (CSC) consulted with the National Elders Working Group and Regional Elders to advance SP60 on Indigenous overrepresentation in correctional facilities. The Elders provided recommendations regarding creating an inclusive and effective educational experience for CSC officials taking the Foundations of Indigenous Corrections training. These recommendations were integrated into the training developed this year.

Indigenous perspectives on cooperation

Indigenous partners generally agreed that cooperation goes beyond consultation, with some partners indicating that it cannot be separated from it. Many partners spoke about cooperation as a relationship that is developed in good faith and over time. They also pointed to shared responsibilities, like jointly identifying priorities.

Similarly, they stressed giving Indigenous lived realities and expertise equal consideration in shared decision-making. Other desired characteristics were emphasized, like innovation, transparency, reciprocity, mutual respect, trust and shared accountability. At a basic level, responses indicated that cooperation could include ensuring that meetings and events are scheduled at mutually convenient times. At a higher level, cooperation entails respect for self-determination, treaty rights and Indigenous sovereignty, in the view of some partners.

“There is also a disciplinary energy that tends to accompany the concept of cooperation as practiced in federal spaces. Indigenous peoples are often subtly or explicitly encouraged to be “reasonable,” to avoid disruption, or to focus on consensus even when their rights are being limited. This framing erodes the potential of cooperation as a relationship-building tool and reduces it to a mechanism for managing Indigenous resistance rather than affirming Indigenous authority.”
Yukon Assembly of First Nations

Government perspectives on cooperation

Many federal departments and agencies also viewed cooperation as an extension of consultation. In general terms, cooperation involved working together more closely and intensively to achieve shared objectives, including open communication. More practically, departments have practiced cooperation through the mutual sharing of knowledge, resources and expertise, and in various formats, such as regular bilateral meetings, webinars, committees, working groups, or review panels. However, for federal departments, cooperation did not generally extend to shared decision-making on policy, legislative or other initiatives.

Indigenous perspectives on co-development

Indigenous partners viewed co-development as working together with the Government of Canada right from the very beginning of a policy, program or legislative initiative. In its early phases, this work could include establishing the joint objectives, priorities, and terms and conditions, and involving Indigenous leadership, and community members including Indigenous women, girls, Two-Spirit individuals, Elders and youth.

Many Indigenous partners stressed the importance of their voices being given equal importance and the ability to share equal decision-making power. They emphasized the need for federal departments to listen and truly incorporate the traditional knowledge, lived experience and priorities of Indigenous peoples, including that of Indigenous women, girls, and Two-Spirit individuals.

Additionally, they highlighted the importance of funding to facilitate meaningful participation. Co-development supports the realization of the right to participate in decision-making in matters impacting Indigenous rights.

While many Indigenous partners felt that co-development practices still need further improvement, one Modern Treaty partner cited some examples of successful co-development: Canada’s Collaborative Self-Government Fiscal Policy, Canada’s Modern Treaty Implementation Policy, and the introduction of Bill C-77 to establish a Commissioner for Modern Treaty Implementation.

Government perspectives on co-development

Federal departments recognized that co-development has no single definition or approach, and that any definition would have to be developed with Indigenous partners. Departments referred to several common traits like those identified by Indigenous partners, including working closely together and meaningfully integrating perspectives from both parties at all stages: from planning to development to implementation. Drawing on concrete experiences, departments indicated that being responsible, flexible, honest and transparent were important values to achieve a true co-developed outcome based on joint decision-making.

Departments reported various programs, policies or initiatives as being co-developed with Indigenous partners, including but not limited to the: Indigenous Skills and Employment Training program, the Nunavut Directive, the Indigenous Stewardship Policy, and the Cabinet Directive on the Implementation of the Inuit Nunangat Policy.

CIRNAC made progress negotiating agreements with the Gwich'in Government, the Inuvialuit Regional Corporation, Sahtu Dene and Métis, Makivik Corporation, and the Naskapi Nation of Kawawachikamach (Indigenous Modern Treaty Partner Priorities Measure 1.4).

In addition, CIRNAC and partners have made progress on co-development principles with First Nations, Inuit, and Métis. Inuit-Crown co-development principles endorsed by federal and Inuit leadership in December 2022 are now being used to guide collaborative work undertaken by Inuit and federal partners. An agreement-in-principle has been reached on the draft Canada-Assembly of First Nations co-development principles and is pending formal endorsement. The Canada-Métis Nation co-development principles secured agreement-in-principle in January 2024 and is pending formal endorsement.

Indigenous perspectives on co-management

Indigenous partners defined co-management as jointly managing resources, and involving shared administration, decision-making and accountability. They understood co-management mainly in the context of land, water and natural resources management, but could also extend to overseeing the activities and resources to achieve the goals and objectives in a strategy or Political Accord. Consideration of each party’s management principles and knowledge, both traditional and contemporary, were deemed important. These parties could include provincial or territorial partners. Some Indigenous women’s organizations pointed to the need to involve Indigenous women in co-management issues particularly given their traditional role as protectors of the lands and waters.

Additionally, some partners stated the need for co-management to be supported by joint legislation or binding agreements. One partner pointed to the need to have more resource-sharing agreements, rather than just revenue-sharing agreements. Another partner also shared their positive experience working with Parks Canada on co-developing the concept of shared stewardship, instead of co-management, within the Rights Implementation Agreement.

“Key to the success of co-management is the recognition of Indigenous rights and interests as well as traditional knowledge and cultural practices.”
Maa-nulth Treaty Society in support of the Huu-ay-aht First Nations, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations, Toquaht Nation, Uchucklesaht Tribe and the Yuułuʔiłʔatḥ Government

Government perspectives on co-management

Reflecting the tendency to frame co-management in the context of land, water and natural resources noted above, departments and agencies working in management or regulation of natural resources in Canada, such as Parks Canada and the Impact Assessment Agency of Canada, provided responses to this question.

Strengthened co-management models are a critical element of the Parks Canada Indigenous Stewardship Framework and Policy and approach to implementing the UN Declaration. Parks Canada currently has over 50 co-management arrangements in place with Indigenous partners, and Action Plan Measure SP95 is focused on enabling broadened approaches to cooperative management, governance and decision-making, including through policy, regulatory and legislative options. This work is ongoing.

The Impact Assessment Agency of Canada pointed to existing definitions articulated in the Impact Assessment Act, where co-management is included in the definition of a specific type of jurisdiction. The Federal Review Panel South under the James Bay and Northern Quebec Agreement was provided as an example of a co-management body.

Challenges, wise practices and lessons learned

Among the most frequently cited wise practices and lessons learned were allocating enough time and engaging early with partners as well as ensuring sufficient funding for meaningful and sustained participation. Federal departments also said that providing supports, such as materials in Indigenous languages or ensuring meetings are accessible for Indigenous persons with disabilities were important.

Limited funding and time to engage, were also frequently cited as barriers. Without sufficient departmental capacity, some departments and agencies were unable to consult with as many Indigenous partners or travel to conduct in-person engagements. One department pointed to challenges with regards to the level of Indigenous-Federal-Provincial-Territorial collaboration and coordination required while respecting jurisdictions. Other barriers included but were not limited to:

• delays in obtaining policy authorities
• prorogation of Parliament that compressed timelines
• the requirement to maintain Cabinet confidentiality
• limitations in technology and Internet access
• navigating trauma experienced by various members following deaths in Indigenous communities

Many departments stressed the need to approach the work in a respectful manner, for example, with regards to Indigenous knowledge, terminology used in meetings, and when scheduling meetings. Building trust through listening, consistency, transparency and openness to criticism without defensive responses were also emphasized. Some departments spoke about following distinctions-based and regional approaches, while others highlighted the importance of having in-person meetings to build relationships, attending Indigenous-led events and conferences, and exploring priorities and interests to Indigenous partners, not just government-mandated priorities.

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