What is Shared Decision Making? (SDM) The term SDM based on any interpretation means decisions that are made through shared processes. It implies that both parties make the decision with equal power and no one has more authority than the other, just coming to a decision together. It does not mean consultation or joint management.
The New Relationship Vision that was agreed to by Premier Gordon Campbell on behalf of the province of BC and the Chiefs of the First Nations in 2005 introduced the term: “Shared Decision Making”. There was no definition of what SDM was in the New Relationship document, but stated:
“We agree to establish processes and institutions for shared decision making about the land and resources and for revenue and benefit sharing, recognizing, as has been determined in court decisions, that the right to aboriginal title “in its full form” including the inherent right for the community to make decisions as to the use of the land and therefore the right to have a political structure for making those decisions, is constitutionally guaranteed by s. 35. These inherent rights flow from First Nations historical and sacred relationship with their territories.”
One of the arguments First Nations hear all the time is that there cannot be shared decision making as you cannot “fetter” the decision of the Minister. Most of the legislation in BC requires the Minister or his “delegate” to make the decisions within the legislation whether it is for permits or licenses. Therefore, the Minister is the only person who can make the final decision. One of the main purposes of the proposed “Recognition Act” was to allow First Nations and the Minister to make decisions together and to get away from the problem of “fettering”. As we know, that legislation did not even get drafted, so in any attempts to do shared decision, this concept of fettering has to be taken into account.
I wanted to explore a few of the models of shared decision making that are being implemented in the province.
In 2010 the Haida and BC enacted the Haida Gwaii Reconcilation Act [SBC 2010] c.17.
This Act creates a Management Council of 2 representatives of Haida and 2 from BC. A Chair is appointed by the Haida and uses consensus decision-making or a vote by majority if there is no consensus and the Chair can cast deciding vote. The council may establish objectives for the use and management of land and resources in the management area for the purposes of the Forest and Range Practices Act and also determine the Annual Allowable Cut (AAC). The council may establish policies and standards for the identification and conservation of heritage sites within the management area. The council makes the decisions within these areas and not the Minister. The Management Council has been putting in place its objectives and processes and this will be a model to watch. Fettering is not an issue in this case as this is a law that empowers the Management Council.
The Tahltan entered into a government to government agreement with BC and BC Hydro over the Northwest Transmission line (NTL) that includes the concepts of SDM. What is most striking about this agreement is that the agreement is dependent on the NTL going ahead. If it doesn’t SDM is off the table. If the province is serious about relationship building, reconciliation and resolving conflict over land and resource issues, why would they make this conditional on the NTL?
They also create a Government to Government Forum (G2G Forum) with reps from BC and Tahltan which will be an efficient and effective engagement process between BC and Tahltan for land and resource decisions focused on issues that will have significant impact on Tahltan rights and title interests, Tahltan Community well being related to impacts and benefits of the proposed benefits of the proposed development and high priority cultural interest zones. I find this very interesting wording as this forum isn’t about all land and resource decisions but only those decisions that have a significant Impact and high priority cultural interest zones. Again, how do you build a relationship when you can only do SDM or your G2G forum can only talk about those things the province thinks are significantly impacted and are in high priority cultural interest zones. Lots of room for impasses there.
The Sts’ailes also have a similar commitment to negotiate an SDM model which is captured in the following clause: “To work toward improving collaboration and identifying opportunities for SDM regarding the use of land and natural resources within the territory.” Most of the agreement is about consultation and accommodation and establishes a table for how that would happen. (this table is also used in the Taku agreement and it being adopted with other First Nations) What bothers me about this agreement is that Sts’ailes has to priorize their interests. So it is the same theme in the Tahltan agreement that you can only address significant impacts and address high priority cultural interest zones. This agreement actually addresses fettering and states “Nothing in this MOU will fetter or derogate from any statutory, regulatory or delegated authority under provincial Legislation.” So any SDM models would be subject to Ministerial approval unless there is legislation that changes that.
The Taku River Tlingit have a much more complex SDM Structure as it is tied to several agreements including a joint land use plan with BC. Their SDM structures, processes and initiatives include
- A government to government forum (G2G)
- Engagement Model for proposed activities in the SDM area
- Joint Initiatives
- Seek to reach consensus on recommendations
- Recommendations can describe areas of agreement and disagreement
The purpose of the agreement is set out in s. 2.1 and states that is “to guide land and natural resource management on the Gitanyow Law’yip”. Guide does not sound like SDM but it does go on to say that the agreement is intended to “establish a clear, reliable and efficient framework for SDM, land and Resource Decisions and achieve meaningful engagement, a common understanding of each Party’s respective interests, including Wilp Sutainability, and the parties’ shared interests and promote well-informed decision making.” (ss. 2.1 (c) and (d))
Unfortunately, none of the schedules are available on either the Government of BC’s or the Gitanyow website so appendix C which sets out the actual framework for SDM is interestingly not yet available. What we do know is that Part 3 sets out the general provisions for SDM, and says the Parties will operate under their respective authorities.(s. 13(3)). It also states that “In engaging in SDM, the Parties commit to make every reasonable effort to seek consensus” (s. 13(6)) but does not elaborate what happens when consensus is not reached. Perhaps the framework elaborates on that. S. 13.1 also notes that they will work together by being consistent with the land use designations, Land Use Zones and Management Objectives as set out in Schedule B. (which is also not available). Once more information is available through the appendixes I will further elaborate on the actual SDM process.
What I do like about the Gitanyow agreement is that there is a Recognition section which sets out that the courts have establish the Gitanyow have a good to strong prima facie claim of aboriginal title and a strong case of aboriginal rights and that BC enters into the agreement based on the fact that Gitanyow have a aboriginal rights in their territory. That way, Gitanyow isn’t always fighting with BC on the strength of claim. It will be interesting to read the Schedules when they come available and to hear from the Gitanyow how their agreement is being implemented.
Are any of these models a process where decisions are truly made jointly? The closest I can see to that is the Haida model and that is limited to the forestry issues but can be used to manage their lands more broadly.
What do these models really accomplish? These models set up an agreed upon process between the province and the First Nation on how they will work together to look at the impacts on land and water of all kinds of developments. They are not the shared decision models that would bring absolute certainty to the land base in BC. I have often said that if SDM was done properly, there would be no need for consultation as the decisions would cover all the concerns and how they could be addressed. Other First Nations in the province will be watching these various models to see how they work out and whether they can negotiate an agreement that truly gives shared decision making the meaning that it was to bring. Reading these agreements and implementing these agreements are two different things so if any of the First Nations who have an SDM model would like to brief me on how it is working, I would gladly provide that input in another blog.
Shared decision making models where decisions are made jointly would be extremely helpful in BC as you see the big issues occuring over the Enbridge Gateway project, Kinder Morgan's proposed doubling of their pipeline in Burrard Inlet, Prosperity Mine, Site C, etc., etc. etc. The consultation and accommodation models are not working and many cases are being brought to the courts to have them rule that consultation has not occurred. Shared decision making would be a good thing if only decisions were actually shared and many of these long drawn out battles over proposed projects would not have to happen. Would love to see that day!