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Duty to Consult and Accommodate FAQs

What is the Duty to Consult and Accommodate?

This is the duty of federal and provincial governments to consult Aboriginal peoples whenever those governments have knowledge of the existence of potential Aboriginal title or rights, and contemplates any activity which might adversely impact such title or rights. Aboriginal rights include treaty rights. If the government learns, through consultation, that its plan is likely to or will adversely impact Aboriginal and treaty rights, it must integrate this knowledge into its plan in order to reduce or eliminate those impacts. Courts have encouraged governments to negotiate with Aboriginal groups towards accommodating continued exercise of their rights.

How did the Duty to Consult and Accommodate arise?

This duty arises from the Supreme Court of Canada’s (SCC) interpretation of s. 35 of the Canadian Constitution, which states that “The existing aboriginal and treaty rights of the Aboriginal people in Canada are hereby recognized and affirmed”, in disputes over land use on Indigenous territories. The 2004 decision in Haida Nation found that the BC government must consult with the Haida before granting timber licenses on their traditional territories, over which they had asserted title. The 2005 decision in Mikisew Cree found that the the duty to consult and accommodate applied to treaty lands,


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Duty to Consult and Accommodate FAQs

What is the Duty to Consult and Accommodate?

This is the duty of federal and provincial governments to consult Aboriginal peoples whenever those governments have knowledge of the existence of potential Aboriginal title or rights, and contemplates any activity which might adversely impact such title or rights. Aboriginal rights include treaty rights. If the government learns, through consultation, that its plan is likely to or will adversely impact Aboriginal and treaty rights, it must integrate this knowledge into its plan in order to reduce or eliminate those impacts. Courts have encouraged governments to negotiate with Aboriginal groups towards accommodating continued exercise of their rights.

How did the Duty to Consult and Accommodate arise?

This duty arises from the Supreme Court of Canada’s (SCC) interpretation of s. 35 of the Canadian Constitution, which states that “The existing aboriginal and treaty rights of the Aboriginal people in Canada are hereby recognized and affirmed”, in disputes over land use on Indigenous territories. The 2004 decision in Haida Nation found that the BC government must consult with the Haida before granting timber licenses on their traditional territories, over which they had asserted title. The 2005 decision in Mikisew Cree found that the the duty to consult and accommodate applied to treaty lands, and that the federal government must consult with the Mikisew Cree about whether and where to place a road running through Treaty 8 lands, given its potential impact on their harvesting rights. Fulfillment of this duty is a constitutional requirement.

What activities might trigger the Duty to Consult and Accommodate?

Any activity that impacts Aboriginal title, rights and treaty rights – including hunting, fishing and harvesting rights, and cultural and spiritual activities. Courts have found that the following activities trigger the duty: early mining exploration, granting timber licenses, road building permits, pipeline construction, sale of Crown-held land within traditional territories, renewal of fish farm licenses and regulation of fisheries. While there is some legal debate, some decisions have held that there is a duty to consult and accommodate on strategic, high level decisions (for example, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010) and on enactments of legislation that may impact Aboriginal rights.

What is the purpose of the Duty to Consult and Accommodate?

The purpose of consultation is to understand the potential impacts of the government’s plan on Aboriginal rights, and then find ways to accommodate the continued exercise of Aboriginal rights. Overall, the purpose of the duty is to work towards “reconciliation” – described by the SCC in Haida Nation as a process flowing from rights and aimed at building just relations between communities.