First Nations Consultation Protocols
Consultation between Indigenous communities and municipal/regional planners requires care and respect. Forming good relationships is critical to averting conflict, or when conflict does emerge, to meeting that conflict in a good way. Many First Nation communities have their own protocols prepared, in order to guide others as they reach out to the community. Whether you’re a planner at a city, looking to connect to a nearby community, or you’re a staff member at a First Nation administration office, looking to develop your own protocols, below are some examples of consultation protocols and standards to look to for guidance.
**It is important to know that although there are commonalities across many Indigenous consultation protocols, each community is unique, and it must not be assumed that one protocol is appropriate for any community.**
This Protocol sets out AFN’s rules, under its laws and its understanding of respectful application of Canadian law, for the process and principles for consultation and accommodation between AFN, the Crown and Proponents, about any Activity that is proposed to occur in AFN’s Traditional Territory and/or Treaty Territory or that might cause an Impact to the Environment or Health therein or AFN Rights.
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,
Ontario Heritage Act
Ontario Heritage Act
The Ministry of Tourism, Culture and Sport (MTCS) is charged under Section 2 of the Ontario Heritage Act with the responsibility to “determine policies, priorities and programs for the conservation, protection and preservation of the heritage of Ontario” and so fills the lead provincial government role in terms of direct conservation and protection of cultural resources. The Minister is responsible for determining policies, priorities, and programs for the conservation, protection, and preservation of the heritage of Ontario. These goals are generally accomplished through other legislated processes, such as those required by the Planning Act and Environmental Assessment Act, rather than directly through the Ontario Heritage Act itself.
The Culture Division of the MTCS has the primary administrative responsibility under the Planning Act and Ontario Heritage Act for matters relating to cultural heritage resource conservation including archaeological resource identification and mitigation in advance of land use development, specifically the Archaeology Programs Unit with respect to the latter.
The Ontario Heritage Act governs the general practice of archaeology in the province in order to maintain a professional standard of archaeological research and consultation. The Minister is responsible for issuing licenses to qualified individuals.
“Aboriginal interests” in Planning Policy Documents
There are various places that land use planning policies refer to Aboriginal interests, to varying degrees. We have gathered a few of these policies, and will continue to add to this list. Scroll down the page to find explanations and links for the following:
1. The Ontario Planning Act & the Provincial Policy Statement (PPS 2014)
Section 17 of the Planning Act requires that the Chief of every First Nation council on a reserve within one kilometer of proposed official plan or plan amendments is circulated on notices for those applications, as part of the public notice process (O. Reg. 543/06, s. 3 (9); O. Reg. 467/09, ss. 2, 3).
Planning authorities in Ontario are further encouraged to engage with Indigenous groups in the planning approvals process. This is affirmed in the most recent PPS (2014), which states that:
The Province recognizes the importance of consulting with Aboriginal communities on planning matters that may affect their rights and interests (PPS 2014: 4,
Introduction to land use planning in Ontario
The Ministry of Municipal Affairs and Housing has put together a series of guides to help understand how the land use planning process works in Ontario. These guides cover items such as relevant terminology, the role of the policy being described, how the province and the municipality are involved, and how citizens can become involved with part of the process.
The following Guides provide a detailed overview (as prepared by the Ministry of Municipal Affairs and Housing) of these facets of the planning system:
From the Citizens’ Guide to Land-Use Planning, from the Ministry of Municipal Affairs and Housing (MMAH)
Platinex Inc. v Kitchenuhmaykoosib Inninuwug First Nation, 2006
Note: while there are a series of decisions in this dispute, this decision was not appealed.
In 1999, Platinex approached the Kitchenuhmaykoosib Inninuwug First Nation (KI) to discuss early exploration proposals on mining claims it held in the community’s traditional territory. KI informed Platinex that it was planning to file a Treaty Land Entitlement (TLE) claim, and did so in 2000. In 2001, after community discussions, KI placed a moratorium on mining in its traditional territory.
In February 2006, Platinex set up an exploration camp on its mining claims. KI community leaders went to the camp and demanded that Platinex stop its exploration activities. Several community members protested peacefully at the road into the camp. After several days, Platinex left the camp, and then sued KI for $10 billion in damages and an interim injunction to prevent the community from interfering with its exploration activities. KI countersued for an injunction stopping Platinex from exploration and for a declaration that parts of Ontario’s Mining Act were unconstitutional.
In order to grant an injunction the court must find that there is a serious question to be tried, that without an injunction irreparable harm will occur,
Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005
In 2000, the federal government approved a winter road running through the Mikisew Cree reserve, without consulting them. When the Mikisew protested, the road was rerouted around the reserve, again without consultation. The Mikisew objected to the 118-km long road based on its direct impact to the 23 square kilometers it would cover, including impacts to fourteen families residing nearby, the traplines of several more families and the moose hunting grounds of nearly 100 hunters. As well, they were concerned about the proposed road’s impact on the area as a whole – keeping the area in a natural state is very important to their ability to teach their traditional culture and skills to the next generation.
The Mikisew Cree are signatories to Treaty 8, and are located in what is now Wood Buffalo National Park. Under Treaty 8, the First Nation has rights to hunt, trap and fish and pursue their traditional way of life. The Crown also has rights, under the treaty, to “take up” lands within the treaty area for various purposes. When the Crown wants to “take up” lands under Treaty 8, as for this proposed road, it must act honourably.