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Step by Step:
Final Report of the Shared Decision Making in BC Project
March 2015
Shared Decision Making in BC Project: 2012-‐2015
• An independent research project exploring the recent emergence of government-‐to-‐government (G2G) agreements between First NaCons and the Provincial Crown in BC
• Two streams of work – CollaboraCve research (review of published and unpublished
literature, interviews) – Face-‐to-‐face dialogues among First NaCons and provincial agency staff
involved in negoCaCon and implementaCon • Project housed at SFU’s Centre for Dialogue • Funded by Gordon and BeQy Moore FoundaCon as a
‘Governance Learning Project’
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Shared Decision Making Agreements
• SDM Agreements provide a framework for collaboraCon between two governments who, despite unresolved quesCons of authority and jurisdicCon, seek to build working relaConships with one another, develop trust, and find ways to reach mutually agreeable decisions about how land and resources should be managed
• Two types of SDM Agreements examined: – Strategic Engagement Agreements – ReconciliaCon Protocols
• Common features, with each agreement tailored to local circumstances
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Approximate locaDon of SDM Agreements in BC
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L AA S K A
N O VERVA C UISLAND KELOWNA
MLOKA OPS
CVAN OUVER
VICTORIA
CEPRIN
Y R I T O YU K O N T E R R N . W . T .
U S( A )
A L B E R T AGEORGE
U S A
L AA S K A
Stó:lo First NationsSigned: 2014Tseycum First NationSigned: 2012
Gitanyow NationSigned: 2012Haida NationSigned: 2009Coastal First NationsSigned: 2009
Nanwakolas First NationsSigned: 2009, Multiple amendmentsSigned: 2011
Taku River Tlingit First NationSigned: 2011Tahltan NationSigned: 2013
Protected Areas
Strategic Engagement Agreement
Reconciliation Protocol/Framework
Scale
km100 0 100 200 300
km
Kaska Dena CouncilSigned: 2012
Ktunaxa NationSigned: 2010Renewed: 2013
Tsilhqot'in NationSigned: 2009Amended: 2011Renewed: 2014Secwe'pemc First Nation Signed: 2013
Snuneymuxw First Nation Signed: 2013Nlaka'pamux Signed: 2014
Musqueam Indian Band Signed: 2008
NOTE: 1. This map does not display precise territorial boundaries but is intended only to show approximate geographic locations. 2. Dashed lines indicate SDM Agreements where the First Nations involved were not active partners in the SDM in BC collaborative research project.
N NAIMA O
PlaEorm for Shared Learning
• SDM in BC project offered neutral pla[orm for reflecCon and shared learning, away from negoCaCng table
• ObjecCves: 1. Understand genesis, scope and intent of SDM Agreements 2. Assess contribuCon toward reconciliaCon, improved land and resource
management decision making, and achievement of environmental, economic, and social objecCves for First NaCons
3. Explore resilience and adaptability in the face of changing social, economic and ecological condiCons
4. IdenCfy tools and best pracCces to support implementaCon
• In light of conCnuing uncertainty over Aboriginal rights and Ctle, SDM Agreements offer informaCve examples of collaboraCon
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Genesis, Purpose and Intent of SDM Agreements
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Drivers for SDM Agreements
• Legal drivers: – Series of legal rulings compelled Crown to engage First NaCons directly in
‘interim period,’ prior to resoluCon of Aboriginal rights and Ctle – Taku and Haida SCC rulings (2004) established ‘Honour of Crown’ doctrine
and clarified consultaCon and accommodaCon obligaCons
• PoliCcal drivers: – On-‐going land use conflicts – Series of bilateral negoCaCons with First NaCons, providing basis for
engagement/MOUs
• OperaConal drivers: – Unwieldy and inefficient referrals process, leading to delays in project
approvals, uncertainty for economic development
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New RelaDonship Vision Statement
• NegoCated between Premier’s Office and First NaCons Leadership Council in 2005:
– We are all here to stay. We agree to a new government-‐to-‐government rela1onship based on respect, recogniCon and accommodaCon of aboriginal Ctle and rights. Our shared vision includes respect for our respecCve laws and responsibiliCes. Through this new relaConship, we commit to reconcilia1on of Aboriginal and Crown Ctles and jurisdicCons.
– We agree to establish processes and ins1tu1ons for shared decision-‐making about the land and resources and for revenue and benefit sharing, recognizing… the right to aboriginal Ctle “in its full form”, including the inherent right for the community to make decisions as to the use of the land …
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Purpose and Scope of SDM Agreements: BC PerspecDve
1. Advance reconciliaCon 2. Improve social and economic circumstances in First NaCons
communiCes 3. Increase consultaCon effecCveness by:
– Providing consistent, predictable and mutually agreed process – Focusing effort on applicaCons that have the greatest potenCal
impacts in most sensiCve areas – Improving working relaConships technical capacity – Commikng to develop addiConal consultaCon approaches over Cme
(a ‘building blocks’ approach to a more comprehensive agreement) Source: BC Factsheet
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Purpose and Scope of SDM Agreement: First NaDons PerspecDves
Various perspecCves, including: • Secure formal recogniCon of territory • Establish a mutually respec[ul, government-‐to-‐government
relaConship • Implement a land use plan, or create mechanisms for conservaCon
of fish, wildlife and cultural values • Secure a more influenCal role in resource management decision
making; • Secure resource revenue from development acCviCes • Improve coordinaCon among mulCple First NaCons within their
own territory but also in areas of shared territory or ‘overlaps’ • Build capacity • A ‘step in the right direcCon’
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Differing PerspecDves
Complex legal and poliCcal underpinnings lead to differing interpretaCons of purpose, scope and uClity: • A form of interim accommodaCon of First NaCons governance
and decision-‐making rights that has the potenCal to serve as a stepping stone to full recogniCon
• An engagement framework to bring greater efficiency and predictability to the consultaCon process in the interim period, to reduce conflict over land and resource decisions, and increase land use certainty
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NegoDaDon and ImplementaDon of SDM Agreements
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NegoDaDng SDM Agreements: Key Factors for Success
• Shared experience of working together as basis for negoCaCon • Respected individuals to act as ‘broker’ to bring the parCes
together, set realisCc expectaCons, and frame work ahead in a construcCve light
• Sufficient technical capacity and capabiliCes to engage effecCvely over extended period
• A ‘reference caucus’ of trusted advisors to offer guidance • EffecCve internal governance for negoCaCng parCes • Senior representaCon at the negoCaCng table, with clear mandate • A realisCc sense of what is pracCcally achievable, and
understanding of what an SDM Agreement can/cannot deliver • ‘Ramping up’ for implementaCon before negoCaCons are
completed
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ImplementaDon: G2G Forums and Joint IniDaDves
• G2GF Forums are centrepiece of SDM Agreements: – Composed of senior representaCves for each party – Structure and terminology varies – Responsible for oversight of implementaCon, dispute resoluCon – Provide a focus for G2G engagement at strategic level
• EffecCveness depends on mulCple factors including: – PaCent trust building – Capable leadership – Willingness to adapt to a new way of doing business – Mutually agreeable agenda – EffecCve liaison with other provincial agencies and First NaCons departments
• G2G Forums oversee ‘joint iniCaCves’ addressing strategic issues, which provide considerable room for innovaCon at margins of policy envelopes
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ImplementaDon: G2G Engagement Process
• A framework to reach agreement on the depth of engagement for any given applicaCon
• Defined process steps and Cmelines • OpportuniCes for direct cooperaCon between technical
representaCves. • Seeks to generate a consensus recommendaCon regarding
the acceptability of a given resource management acCvity, for consideraCon both by provincial statutory decision makers and by the First NaCon(s) involved
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ConvenDonal Referrals Model
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Application from proponent
Screening
Referral letter(s) from one or more agency British Columbia
Analysis
Statutory decision by BC
First Nation
Provincial authorization
First Nation reviews referrals letter(s) from one or more agency and may provide response
Referral response
G2G Engagement Process
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Application from proponent
British Columbia
Statutory decision by BC
First Nation(s)
Provincial authorization
Issue Resolution (if required)
Screening
Complete application provided to FN
Screening
Detailed Technical Engagement Analysis Analysis
First Nation Decision
Potential for communication by First Nation with proponent
Joint Decision Making for Haida Gwaii Management Council
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Application for resource development activity
Joint screening
Detailed analysis of application jointly to achieve consensus decision
Single decision by HGMC
HGMC issues authorization
BC Haida
Specific authorities delegated to HGMC under provincial statute
Specific authorities delegated to HGMC by Haida House of Assembly
HGMC
G2G Engagement: VariaDons & Keys to Success
• G2G Engagement process vary: – InformaCon sharing (may uClize ‘portal’) – Establishment of engagement levels by criteria, by decision type – Timelines – ExpectaCon of First NaCon decision (or just recommendaCon to provincial
statutory decision maker) – Linkage to strategic land use plans, or spaCal reference layers
• Keys to success: – PaCent building of trusted working relaConships at technical level – EffecCve coordinaCon (internally and with other party) – Consistent and Cmely adopCon of administraCve tools and templates – EffecCve use of available regulatory tools – Willingness to clarify raConale for decisions made
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G2G Engagement: Challenges
• Inconsistencies in transacConal processes, leading to administraCve complexity at regional scale
• Ambiguity over use and interpretaCon of data provided (cultural informaCon)
• FeQering of statutory decision makers • Limited ‘accommodaCons toolbox’ • Complexity of higher-‐level engagement, interface with other regulatory
processes (e.g., Mine Development Review CommiQee) • Exclusion of EA decisions • Non-‐parCcipaCng agencies • No G2G engagement on policy and legislaCon • Primary focus to date on transacConal efficiency, rather than effecCveness • Lack of field monitoring to provide evidence of improvements in resource
management
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Overall Value and Areas for Improvement
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Overall Value of SDM Agreements
Research results indicate overall value ranked moderate to high by both First NaCons and provincial pracCConers (2013 and 2014 surveys)
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Overall Successes for SDM Agreements
• “SDM agreements are trying to breathe life into the New Rela?onship, and to establish a collabora?ve decision making approach in non-‐treaty environment. They’re at cuFng edge of what is possible given current laws and poli?cs. People need to understand that these agreements are shiHing the way BC and FNs deal with one another—they really are changing things.” Provincial pracCConer
• “Even the failures offer examples and ideas about how we can make things beQer. We have been able to get the province on our side in the past… It’s about the power of rapport and dealing with the right people inside of government. The best approach is to make the short term gains with the long term goal in mind. It’s like a football game: We are not going to get a field goal from the 5 yard line on our end…” First NaCons pracCConer
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Overall Success for SDM Agreements
• RecalibraCon of relaConships, on respec[ul G2G basis • A standing arrangement for coordinated, strategic-‐level discussions
on land and resource management issues • A more predictable, consistent and coordinated process for the
consideraCon of land and resource management applicaCons • PotenCal to create a community of pracCConers who are all pulling
in the same direcCon • Modest capacity building • PotenCal to provide greater certainty for economic development,
opening doors for closer cooperaCon with proponents • CollaboraCon on planning and management issues through joint
iniCaCves, with space for innovaCon and experimentaCon
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Areas for Improvement
• G2G Forums need to demonstrate consistent paQern of resolving strategic issues
• Stronger alignment of provincial agencies to support implementaCon
• Sustained commitment to capacity building within First NaCons • Incremental refinements to G2G engagement processes, based on
pracCcal experience • Certainty for long term funding model:
– Beyond 3 year funding cycle, subject to Cabinet/Treasury Board approvals – Without sole reliance on ECDA revenue sharing model
• Assessment of socio-‐economic benefits • Further clarificaCon of opportuniCes for reconciliaCon
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Monitoring and EvaluaDon of SDM Agreements
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Monitoring and EvaluaDon
“If you don’t know where you are going, any road will get you there…” Aper Lewis Carol “One of the great mistakes is to judge policies and programs by their inten?ons rather than their results” Milton Friedman
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Need for Monitoring and EvaluaDon of SDM Agreements
“On both the provincial side and our own, we are run off our feet. By the ?me we want to evaluate ourselves, people may be gone and we won’t remember… We are more anecdotal, not systema?c in our monitoring.” First NaCons pracCConer • Monitoring to date has focused on compleCon of implementaCon steps
and tracking of engagement transacCons • Long term success depends in part on willingness to reflect on a broader
range of successes and failures, and make improvements where needed • ConvenConal ‘compliance-‐audit’ approaches have limited applicaCon for
SDM: – Legal and poliCcal situaCon in constant flux, requiring adjustments in approach and
prioriCes – Change is non-‐linear and difficult to quanCfy (e.g., trust building, improved
decision making reconciliaCon) – Causal relaConships muddy
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New Approaches for Monitoring and EvaluaDon
• Acknowledge complexity of socio-‐ecological systems
• Focus not only on whether things are working, but how well those involved are learning together about what is working and what is not
• Focus not only on transacCons and tangible outputs, but also on the ability of those involved to adapt to change, and adjust in light of new informaCon and new understanding
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Everything that can be counted does not necessarily count; everything that counts cannot necessarily be counted Albert Einstein
Suggested Framework for Monitoring and EvaluaDon of SDM Agreements
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Further Steps for EffecDve ImplementaDon
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Further Steps for EffecDve SDM ImplementaDon
• Build a consCtuency of support for SDM Agreements among local communiCes, stakeholders and the public
• Support an on-‐going community of pracCce among SDM pracCConers, which would require: – a clear mandate secured at senior levels within MARR; – voluntary parCcipaCon by each First NaCon; – opportuniCes for discussions among First NaCon pracCConers alone, in
addiCon to dialogue between provincial staff and First NaCons representaCves
– funding support to cover logisCcal costs – clearly-‐defined responsibiliCes and resources for coordinaCon – definiCon of a ‘shared agenda’ to support conCnuous improvement over
Cme, while providing flexibility for parCcipants to be involved to a greater or lesser degree depending on their own prioriCes and interests
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Final ReflecDons
• “Cultural change is hard for both sides. These agreements will succeed or fail based on the willingness on both sides to make it work… We are overcoming decades of conflict, which simply takes ?me. Face to face ?me is cri?cal.” First NaCons pracCConer
• “At the end of the day, this is s?ll consulta?on. We want to get to real decision making in our homeland—decision making that is meaningful. I s?ll think of this as a pilot, but there is real poten?al… It is only a stepping stone to where we want to get to… We don't want to be consulted for the rest of our lives.” First NaCons pracCConer
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Final ReflecDons
• “We have built a pla]orm for the rela?onship that provides stability and a place, actually a number of places for important conversa?ons to happen… If the current aFtudes and the current process con?nue to be implemented, I don’t see what could get in the way of con?nued success. But the world is complex. There could be changes in poli?cal perspec?ves. There could be major issues that arise. It is about resilience. It is not just that things might come out of the woodwork and knock these agreements down; it is a ques?on about whether they can get back up! There has to be recogni?on of the value of an enduring rela?onship. There will be places where inevitably we cannot come to agreement on specifics. Any marriage is like that. The ques?on is, do you want to be right or do you want to be happy? No one is going anywhere and so we need to work together. The phrase ‘We are all here to stay’ is key. So how do you want that to go? Even if the agreement is terminated, we s?ll need to talk together and work through things aHer all.” Provincial PracCConer
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SDM in BC Project Deliverables
First NaDons Dialogues: • June 4-‐5, 2012, Vancouver • November 29-‐30, 2012, Vancouver • June 13-‐14, 2013, Vancouver • November 28, 2013, Vancouver • April 2, 2014, Vancouver • November 28, 2014, Vancouver Joint BC-‐First NaDons Dialogues: • Workshop on InformaCon Portals,
November 26-‐27, 2013, Vancouver • April 1, 2014, Vancouver • November 27, 2014, Vancouver
Major Research Products: • Summary: Preliminary Analysis of
Interview Results (June 2013) • Backgrounder: G2G Engagement
Models for Shared Decision Making in BC (June 2014)
• Backgrounder: Informa?on Portals for Shared Decision Making (June 2014)
• Discussion Paper: Understanding the Sharing of Decision Making in BC (December 2014)
• Introductory Guide: Monitoring and Evalua?on of Shared Decision Making Agreements (February 2015)
• Step by Step: Final Report of the SDM in BC Project (March 2015)
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For more informaDon: www.sfu/dialogue/sdm/
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