Why is consultation undertaken?
“The Government of Canada consults with Canadians on matters of interest and concern to them. Consulting is an important part of good governance, sound policy development and decision-making. Through consultation, the Crown seeks to strengthen relationships and partnerships with Aboriginal peoples and thereby achieve reconciliation objectives. In addition to pursuing policy objectives, the federal government consults with Aboriginal peoples for legal reasons. Canada has statutory, contractual and common law obligations to consult with Aboriginal groups. The process leading to a decision on whether to consult includes a consideration of all of these factors and their interplay.” – Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011
A more practical definition is:
"The Duty to Consult and Accommodate is the obligation of all Crown representatives to discuss matters of mutual interest with Aboriginal communities."
What is the Basis for the Duty to Consult
- Aboriginal communities have a deep and abiding connection with the land
- Aboriginal communities have a deep and abiding history with Europeans
- Aboriginal communities see this connection to land and their history with Europeans, as a matter of relationship, based on mutual obligation and trust
To Whom does the term “Aboriginal” refer?
The term “Aboriginal” is constitutionally recognised, and refers to: First Nation, Métis, and Inuit peoples.
To Whom does the term “European” refer?
For our purposes here, “European” means French and English. In the conflict between these two, over this part of the continent, Britain emerged dominant. The United States and Canada eventually followed in its wake. Indigenous participation in this history was often pivotal, but their position was often ignored as well.
What does multi-culturalism mean for Consultation?
As the history of contact unfolded between “Aboriginal” and “European” peoples it evolved into a country based on many cultures: those indigenous to the Americas, as well as others from Europe, and those from Africa and Asia. This trend was well established before the confederation of Canada into a modern nation-state. Even the assimilationist forces of modernity could not overwhelm this fact of our existence. Official recognition of multi-culturalism came as we slipped into a post-modern society. However, it is vital to remember that indigenous peoples are not simply another stakeholder group in this mosaic. They are rights holders by virtue of their status as First Peoples and the Treaties we have made with them
Who represents the Crown?
The role of the “Crown” is represented at the federal, provincial, and territorial levels of government.
What is the Honour of the Crown?
“Honour” in its most basic form is simply respect. It was most clearly delineated in the court case of Haida Nation v. B.C. (Minister of Forests), 2004 SCC 73:
- “The government's duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples.”
- “The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of “sharp dealing”.
What is the Duty to Consult?
“Consult” essentially means to seek advice. The Supreme Court of Canada has affirmed, in a number of landmark decisions, such as Haida (2004), Taku River (2004) and Mikisew Cree (2005) that the Crown has a duty to consult when three elements are present:
- Contemplated Crown conduct
- Potential adverse impact
- Potential or established Aboriginal or Treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982
Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011
What is the Duty to Accommodate?
“Accommodate” is to make fit. The courts have said that consultation would be meaningless if, from the outset, it excluded any consideration of the potential need to accommodate the concerns raised by indigenous groups.
Consultation may reveal a need to accommodate and can take the form of avoiding, eliminating, or minimizing the adverse impacts on potential or established Aboriginal or Treaty rights. If this is not possible, the Aboriginal community must be compensated for those adverse impacts. In some circumstances, appropriate accommodation may be a decision not to proceed with the proposed activity.
Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011
Are Third Parties Obligated?
The courts have indicated that the Duty to Consult and Accommodate rests with the Crown. However, though this duty cannot be delegated to a third party, it has been extended Planning Backgrounder-- Significance of Duty… -- in some ways under certain circumstances. This has by no means been fully articulated, let alone understood.
Are Municipalities Obligated?
Constitutionally, they are not; however without consultation, the moral validity and technical effectiveness of municipal plans have been challenged. Policy frameworks and statutes from senior levels of government may also require it.
Planning Backgrounder---- Significance of Duty
Are Commercial Interests Obligated?
Constitutionally, they are not; however this is complicated by the fact that governments regulate many profit-making activities. Also, it is certainly in the vested interest to limit risk and efforts by private enterprise can fulfill the Crown’s duty.
Planning Backgrounder---- Significance of Duty.
Who is entitled to Treaty Rights?
The issue of who has Treaty Rights is a bit of a trick question. Treaties can only be signed by equals. In the modern context, we would say “nation to nation”. Thus, anyone who is a Canadian citizen has Treaty Rights: the right to live here, the right to make a livelihood, the right to purchase land, the right to develop it… instantiating a need for planning. For anyone who is an Indigenous-Canadian citizen having Treaty Rights has turned out to be far less substantial and far less secure… instantiating a need for consultation.
