There tends to be limited communication between industry and government regulators regarding industry’s First Nation engagement efforts. This is due in part to a lack of clarity regarding who in government should be briefed on First Nation engagement work, as well as a fear that government involvement may inadvertently undermine First Nation support for a proponent’s project. In some cases, First Nations also prefer to meet separately with industry and government.
Regardless of the rationale, this lack of open communication can result in government duplicating a proponent’s engagement efforts. In a worst case scenario, government’s separate consultation efforts may inadvertently send messages that are at odds with those of the proponent regarding a proposed project. As with industry, government’s consultation efforts are also challenged by lack of First Nation capacity funding for early engagement and consultation efforts.
Finally, and perhaps most importantly, government as well as industry is challenged by the constantly evolving nature of the common law and the Crown’s Duty to Consult with, and accommodate, aboriginal and treaty rights. As proponents enter the regulatory process, one of the consequences of this rapidly evolving legal environment is that government is challenged to provide clarity on the engagement requirements of First Nation governments.