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Bulletin | Covid-19

Interim Indigenous Consultation Guidelines During COVID-19

Fasken
Reading Time 3 minute read
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Indigenous Law Bulletin

The British Columbia Ministry of Indigenous Relations and Reconciliation has issued an Indigenous consultation bulletin outlining interim guidelines for those responsible for consulting with Indigenous communities and organizations during the COVID-19 pandemic.

Not surprisingly, proponents should expect that there may be delays in processing applications for permits or other approvals in part to allow time for consultation with Indigenous groups. Circumstances will be assessed on a case-by-case basis, but it is clear from the interim guidelines that the Province remains committed to providing Indigenous groups an opportunity for meaningful consultation before permits or approvals are issued.

Some considerations for proponents who are progressing or initiating a consultation process include:

  • Consult websites maintained by the relevant Indigenous groups, the Province and Canada for updates on whether the Indigenous group’s offices are open, contact information during the COVID-19 pandemic and any other relevant information. Where companies have an existing relationships with Indigenous communities, you can reach out to your contacts and ask them how best to communicate with them during the pandemic.
  • Obviously, in-person meetings should not be held, and other meeting tools should be considered such as telephone and videoconference, where capacity allows. To the extent proponents are in a better place to provide access to these tools, they should consider doing so.
  • Consider whether it is essential that the activity you are consulting about progresses on the original schedule, or whether it can be postponed or slowed down.  Factors that the Province will take into account with regard to its consultation process include:
    • the capacity of Indigenous groups who are likely to be focused on the health and safety of their communities;
    • the nature of the activity to be consulted on, including whether it is an essential service or otherwise addresses a health or safety issue;
    • urgency of the activity and consequences of delay;
    • the nature and severity of the impact of the proposed activity on the affected Indigenous groups; the more serious the impact, the more consideration should be given to allowing more time for consultation;
    • how far along consultation is; the interim guidelines note that where consultation is just beginning, more time may be needed, but where it is significantly progressed, it may be reasonable to proceed.

The Province has forewarned that the current circumstances may result in requests from Indigenous communities to extend timelines, and deferral of decisions by Provincial decision-makers, to accommodate capacity challenges in a considered and sensitive manner, with the ultimate goal of allowing sufficient time for meaningful consultation.

Where approvals must proceed, proponents ought to be flexible, creative and collaborative, attempting to identify ways in which information and concerns about the proposed activity can be shared and addressed in a meaningful way.

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