The Duty of Consultation

An notable development on the national scene here in Canada:   the Federal Court of Appeals ruled recently on a matter of rather major significance when the federal government was advised that they could not proceed with the construction of the TransMountain pipeline.  Two reasons were given – one, environmental, related to protecting the coastline of British Colombia; the other had to do with what was identified as a duty of consultation with the indigenous peoples who reside along where the pipeline would be installed. 

I am not going to here comment on the pros or cons of the pipeline.  Rather it was this matter of consultation that caught my attention, for a couple of reasons.  First, it was  good reminder that consultation with those affected by an action is something essential to a healthy democracy.  The federal government was called to account by the courts on the assumption that the government could not act unilaterally even in a sphere where the government had the authority to act – unless and until proper consultation had happened. 

And second, what also caught my attention was that it was not at all clear – at least to this reader – what would constitute adequate consultation. 

First, we need to affirm that healthy and dynamic organizations are marked by effective leadership that is able to exercise authority and influence such that the mission of the organization happens.  But, this authority – this power to act – assumes some level of accountability and, further, that the actions taken by the administration need to take account of the perspective and experience of those affected by those actions. 

The university where I serve implemented a phased retirement policy.   But we did so only after it was deemed that adequate consultation had happened with those who would be affected by this policy.   The key here is to balance the capacity to act with the level of consultation that is appropriate.   Consultation assumes that those being consulted do not have final authority or veto power on the action to be taken. But they have the right to speak and those in leadership have the obligation to . . . and there’s the rub:  what in the end constitutes adequate and appropriate consultation? 

How do we engage in genuine consultation and do so in  way that keeps the authority to act with those who have the responsibility to do so but gives voice to those duly affected and actually incorporates their perspective so that the decision, the action to be taken, is actually a better choice?  And consultation presumably, if it is truly adequate and appropriate, might significantly alter the decision or in the end true consultation might mean that no action is taken or that something significantly different happens.   

If there is a duty to consult, what in the end constitutes and confirms that genuine consultation has happened?  Is this entirely subjective?  Is it merely the executive leader who says:  I have consulted . . . I can check that requirement off the “to do” list and now I can act?  Or can we be genuinely accountable to consult so that we can say to those to whom we are accountable – such as myself, as  president, to the board of the university – that I can say that I have consulted with the appropriate entity [say the faculty] and that I am now acting on the matter.   How can the board know that consultation truly happened?   Can I say that I have consulted with the faculty and if a faculty member were present that person could indeed confirm that the president did consult?   What is the evidence of true consultation? 

If it is not entirely subjective, what are the indicators?   Well, on this one I would value your input.  Write to me at gts@gordontsmith.com and offer the following:

• A story of where consultation should have been required, but the leadership acted unilaterally – notably an example that affected you personally;
• An example of there was genuine consultation that informed and strengthened the decision or action item;
• Perhaps also  case where you were consulted but the decision was not what you would have liked but you still agree that the consultation was adequate; and,
• What you think might be genuine indicators that genuine consultation did happen.

Write to me at the e-mail above.  I would value hearing from you.