The duty to consult and, if appropriate, to accommodate the concerns of Indigenous peoples emerges when the Crown wishes to act in a way that may have adverse consequences for treaty rights or for Indigenous rights, more broadly. The requirement applies to the federal, provincial and territorial governments. The duty to consult needs to be integrated into the environmental assessment and regulatory review processes. Boards, tribunals, regulatory authorities and industry representatives all play a role in the consultation process; however, the Crown retains ultimate responsibility to ensure that the necessary consultation and, if appropriate, accommodation has occurred.
The failure to consult meaningfully may result in the delay or eventual cancellation of a project. For example, on 30 August 2018, the Federal Court of Appeal overturned the Canadian government’s approval of the Trans Mountain pipeline expansion project due, in part, to inadequate consultation with Indigenous peoples. However, consultation does not imply an Indigenous veto upon development activity. Rather, consultation is intended to protect Indigenous rights and to preserve the future use of resources for Indigenous peoples. It requires that the Crown provide appropriate accommodation and necessary compensation. (See also Resource Rights and Resource Management.)
In October 2018, the Supreme Court ruled in the Mikisew Cree First Nation case that the duty to consult with Indigenous people is not applicable to the drafting of legislation. Judge Andromache Karakatsanis explained, “Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature.” Although the duty to consult does not apply, the court did find that the government has a duty to maintain the “honour of the Crown” when drafting laws affecting Indigenous peoples.
The duty to consult emerges from the recognition and affirmation of Indigenous and treaty rights in section 35(1) of the Constitution Act, 1982. It is associated with the Supreme Court of Canada’s recognition of the obligation to protect the honour of the Crown. As Chief Justice Beverley McLachlin explained in 2004: “It is a corollary of section 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights and interests. This, in turn, implies a duty to consult and, if appropriate, accommodate.” Because this obligation applies only to those rights affirmed and recognized in section 35 of the Constitution Act, 1982, it is reasonable to conclude that the duty to consult in Canada is associated with rectifying the imbalance of power that historically has existed in the country between the government and Indigenous peoples.
The steps required to fulfill the requirements for the duty to consult are a work in progress. This is due, in part, to the fact that the Indigenous and treaty rights involved in various cases differ in both scope and content, and in their relationship to the Crown.
However, the federal government has prepared a lengthy guide to consultation and accommodation. The first steps are to consider if the contemplated actions or regulations may have harmful or unfavourable impacts on Indigenous rights. The government must then identify those Indigenous communities that have potential or existing rights that might be infringed upon and enter into meaningful consultation with them regarding those potential impacts. Industry representatives, boards, tribunals, regulatory authorities and Indigenous communities all play an essential role in this process. During consultation, projects may be delayed while discussions regarding adequate compensation occur.
The duty to consult is most apparent on projects or regulations that have environmental impacts because they often involve issues concerning Indigenous and treaty rights, such as access to land, water and resources. For example, a pipeline might indirectly impact wildlife migration patterns of animals important to Indigenous societies and economies. Similarly, a tailings pond (see also Mining and Oil Sands) may have the potential to impact fisheries and migratory birds, or a new government regulation might restrict land use on traditional territories. In each of these cases, meaningful consultation must be undertaken with Indigenous nations prior to action.
Select Case Law
The duty to consult has been at the heart of a number of important legal cases in Canada. In its 2004 decision in the Haida case, the Supreme Court of Canada established that the duty to consult and, if appropriate, accommodate, extends to existing and potential Indigenous rights. The decision notes that: “The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests.” While the court admitted that the federal government “is not rendered impotent” (i.e., powerless) by this legal requirement, it emphasized that:
Depending on the circumstances… the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.
The Supreme Court extended the duty to consult to actions that might adversely impact treaty rights in its 2005 decision in the Mikisew Cree case. In the 2010 Beckman v. Little Salmon/Carmacks case, the court determined that the terms of modern land claims agreements do not relieve the Crown of the duty to consult, even when they contain provisions that outline consultation processes. At the same time, however, the court decided that the actual consultation undertaken in this case was sufficient. That same year, the Supreme Court limited the duty to consult to only those decisions that provided immediate adverse impact in the Rio Tinto Alcan case.
The duty to consult is also an emerging doctrine in international law. Canada’s decision to adopt the United Nations Declaration on the Rights of Indigenous Peoples in 2007 (and fully support it without qualifications in 2016) imposes a number of consultation requirements upon the government. (See also Human Rights.) According to the convention, the Crown needs to “consult and cooperate in good faith” in order to “obtain [the] free and informed consent” of Indigenous people prior to taking actions or making decisions that might affect them.
In order to provide a mechanism for consultation, many government departments have made provisions for consultation and a number of industry agencies have integrated consultation into their business processes. As well, several consultation agreements have been negotiated in the country. These agreements may be province-wide strategies, such as the Mi’kmaq/Nova Scotia/Canada consultation agreement, or they may involve particular Indigenous communities, such as the Algonquins of Ontario Consultation process. They may also be sector-based, such as agreements to consult on oil and gas development in a segment of Treaty 8 territory in northeastern British Columbia.
Litigation regarding the failure to meaningfully consult, as seen in the appeals that followed Prime Minister Stephen Harper’s approval of the Northern Gateway pipeline in 2014, for example, demonstrate that the courts are often used as a means of enforcing or clarifying the Crown’s obligation to consult. Providing Indigenous communities with a meaningful role in approving and setting conditions for projects, and ensuring that some material benefit flows to Indigenous communities from those projects, is a step towards reconciliation.