What is the Crown’s duty to consult Indigenous peoples?
Natai Shelsen, What is the Crown’s Duty to Consult and Accommodate Indigenous Peoples?, June 2019 presentation prepared for the annual conference of the Association des juristes d’expression française de l’Ontario
There is renewed interest in the duty to consult and accommodate following the Federal Court of Appeal’s decision to quash the Order in Council approving the Trans Mountain Pipeline. In Tsleil-Waututh Nation v. Canada, the Court concluded that the Crown had breached its constitutional duty to consult and accommodate Indigenous peoples in relation to the Trans Mountain Pipeline by not engaging in meaningful two-way dialogue with the Indigenous groups in question. It remitted the matter back to the Governor in Council and ordered that new consultation efforts be undertaken.
The importance of this obligation cannot be overstated. The adequacy of consultation efforts and accommodation measures has an impact not just on Indigenous peoples but on all Canadians, given the economic importance of natural resource development in this country. In making decisions that might have a prejudicial effect on Aboriginal rights, the Crown has a constitutional obligation to engage with Indigenous peoples about those rights and to seek ways to accommodate them. It must also reconcile Indigenous interests with other interests. If the Trans Mountain Pipeline is any indication, the stakes are huge.
This paper answers basic questions related to the Crown’s duty to consult and accommodate:
- What is the duty to consult and accommodate?
- When does the duty arise?
- What is the content of the duty?
- Who’s duty is it?
- What rights does it protect?
- Who can complain of a breach?
- What remedies are available?