Duty to consult and accommodate

Where the Crown is contemplating undertaking conduct that could have an adverse impact on section 35 Aboriginal or treaty rights, the Crown has a duty to consult with the rights holding group and, where appropriate, accommodate the rights (Haida, SCC). The duty to consult can arise in relation to established treaty rights (Mikisew, 2005, SCC) and in relation to rights not yet determined, often referred to as asserted or potential rights (Haida, SCC). Where rights are not yet determined through agreement, litigation or other means, the purpose of consultations is to preserve the Indigenous interests pending resolution of the claim (Haida, SCC).

The duty to consult flows from the honour of the Crown and is constitutionalized by section 35 of the Constitution Act, 1982 (Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54). The duty is variously described as a common law or constitutional duty. The ultimate goal of consultation is reconciliation (Haida, SCC).

Both the Crown and Indigenous peoples are required to engage in consultation in good faith (Haida, SCC; Mikisew 2005, SCC). The duty to consult applies to the executive branch of government, not the legislative branch; as such, it does not apply to the development of legislation (Mikisew Cree, 2018).

That said, the United Nations Declaration on the Rights of Indigenous Peoples Act now requires that the Government of Canada “consult and cooperate” with Indigenous peoples on legislative and regulatory initiatives that affect them. This statutory obligation is distinct from the duty to consult, as explained above. The meaning of “consult and cooperate” has not yet been considered by Canadian courts, but has been understood (in international commentary) to refer to the importance of involving Indigenous peoples and their representative organizations early in the development of laws or regulations which may impact significantly on their rights or interests.

Crown obligation

The duty to consult is owed by the Crown, both federal and provincial (Haida, SCC), to the Indigenous group that holds the s. 35 rights (Behn v Moulton Contracting Ltd., 2013 SCC 26). The duty falls to the emanation of the Crown, either federal or provincial, in relation to conduct within its jurisdiction (Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48; Chartrand v BC, 2015 BCCA 345).

Whether the duty applies to local governments is not settled law. In one lower court case, it was held that a municipal government does not have a duty to consult (Neskonlith Indian Band v Salmon Arm, 2012 BCCA 379). By contrast, in another case, the court assumed, without specifically addressing, that a municipal government had a duty to consult (John Voortman & Associates Limited v Haudenosaunee Confederacy Chiefs Council, 2009 CanLII 30151 (ON SC)).

Private entities, such as industry proponents for resource development projects, do not have an independent duty to consult (Haida, SCC; Canada v Long Plain First Nation, 2015 FCA 177). The Crown can delegate certain procedural aspects of consultation to third parties.  The duty, however, remains with the Crown.

A statutory body acting on behalf of the Crown can trigger the duty to consult (Clyde River (Hamlet) v Petroleum Geo ‑ Services Inc., 2017 SCC 40).

Tribunals may be empowered with both the power to carry out the Crown’s duty to consult and the ability to adjudicate on the sufficiency of consultations (Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41).

Regulatory processes can be relied upon, in whole or in part, to fulfill the Crown’s duty to consult, including in cases where the Crown itself, meaning the executive branch of government, is not involved in the process. (Clyde River, SCC; Chippewas of the Thames, SCC).  However, the Crown remains ultimately responsible to ensure consultation is adequate (Clyde River, SCC).

When the duty to consult arises

The following three elements must be present for the duty to consult to arise: contemplated Crown conduct; section 35 rights; and the potential for adverse impacts on those section 35 rights caused by the contemplated conduct.

Crown conduct

For purposes of triggering the duty to consult, Crown conduct denotes the exercise of executive government powers (Clyde River, SCC). As previously noted, the duty to consult cannot attach to the law-making process of legislatures which includes the preparation of legislation by Ministers and their departments (Mikisew Cree 2018, SCC). 

The courts have found that a wide range of conduct by the executive branch of government can trigger the duty to consult and have specified that in addition to project- or site-specific decision-making, “strategic, higher-level” decisions can trigger consultation obligations. (Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43). Kinds of conduct that have been held to trigger the duty to consult include:

Section 35 rights

The Crown must have actual or constructive knowledge of an Aboriginal or treaty right that might be adversely impacted by the contemplated conduct. The right need not be determined, hence the reference to “asserted or potential” rights. Knowledge of a credible, but unproven, claim suffices (Haida, SCC). The duty to consult can also arise in relation to treaty rights found in both historical and modern treaties (Mikisew, 2005, SCC; Beckman, SCC).

Non-resident Indigenous collectives that can satisfy the threshold question that they are “aboriginal peoples of Canada” may claim that they hold rights recognized and affirmed in section 35, and as such may be owed a duty to consult. However, Canada does not have an obligation to seek out potential rights holding collectives outside of Canada. Rather they have an obligation to provide notice to Canada of their claims (Desautel, SCC).

Adverse impacts on section 35 rights

The contemplated Crown conduct must give rise to a potential for adverse impact on the Aboriginal or treaty right. The adverse impact must be on the right itself or the future exercise of the right. Immediate impact on lands and resources is not necessary (Rio Tinto, SCC). The adverse effects must be appreciable and non-speculative in nature (Rio Tinto, SCC; Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4).  There must be a causal relationship between the proposed Crown conduct and the adverse impact identified (Rio Tinto, SCC; Hupacasath, FCA). Prior and continuing impacts will not give rise to the duty to consult (West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247). However, the cumulative effects of existing regulatory regimes and development projects previously authorized are relevant to assess the severity of adverse impact of a proposed Crown conduct.

The Crown conduct must have the potential to cause a new or novel adverse impact on the right (Rio Tinto, SCC). The duty is not triggered by historic impacts and is not a vehicle to address historic grievances (Chippewas of the Thames, SCC).

Fulfilling the duty to consult

The scope and content of the duty to consult vary with the circumstances and are proportionate to the preliminary assessment of the strength of the claim and the severity of the potential adverse impact on the right (Haida, SCC). The more substantiated the right (for instance, for established claims or those that have a strong prima facie case) and the more serious the potential adverse impact to the right, the more onerous the duty. Conversely, the weaker the claim or the breadth of the right and the lesser the severity of the potential impact, the less onerous the duty.

At the lower end of the spectrum the Crown may be expected to take such measures as giving notice, disclosing information, and discussing any issues raised in response to the notice (Haida, SCC). At the higher end of the spectrum, the Crown may be required to take such measures as providing written reasons, or in some cases to work with the affected groups to accommodate their concerns (discussed below). Though the duty to consult does not require the Crown and Indigenous group to reach agreement (Haida, SCC), the Crown must nonetheless be responsive to the concerns expressed (Mikisew, 2005, SCC). The honour of the Crown requires reasonable, good faith efforts to provide meaningful consultation that seeks to reconcile interests at stake.

The adequacy of the consultation process is judged by the courts on the basis of reasonableness, not on a standard of perfection (Haida, SCC). Adequacy is a question of fact, not dependent on a test or perfunctory formula (Ktunaxa Nation, SCC).

The duty to accommodate

There is no freestanding duty to accommodate, but the duty might be revealed through consultations (Haida, SCC). The purpose of accommodations has been described by the courts in various ways, including seeking to harmonize conflicting interests, avoiding irreparable harm to rights and avoiding the depletion of resources that are subject to claims (Haida, SCC).

Accommodating adverse impacts on claims yet to be determined may require a balancing of the Indigenous concerns with other societal concerns and public and private rights (Haida, SCC). Accommodation of rights not yet determined is not meant to provide the same benefits and protections as would be obtained from the resolution of a claim (Ka'A'Gee Tu First Nation v Canada (Attorney General), 2012 FC 297).

As with the duty to consult, adequacy of accommodations is assessed on the basis of reasonableness. It may be reasonable in certain circumstances not to provide the accommodation measure sought, for example where the measure is outside the constitutional jurisdiction of the implicated level of government (Nunatsiavut Government v AGC (DFO), 2015 FC 492). The duty to accommodate may be satisfied where the Crown responds with a range of reasonable responses in the face of the Indigenous claimants asserting that no accommodation is possible (Ktunaxa Nation, SCC).

Informed by its discussions with Indigenous groups, the Crown has over the years implemented different types of accommodation measures to accommodate Aboriginal and treaty rights, including the following:

Indigenous groups also have obligations when seeking accommodation, namely to be flexible and reasonable in discussing accommodation options (Haida, SCC; Ktunaxa Nation, SCC).

It is not for the courts to grant declaratory relief that dictates a particular form of accommodation (Wii’litswx v HMTQ, 2008 BCSC 1620).