What is the Duty to Consult and Accommodate Indigenous Peoples? Q & A Guide

The duty to consult and accommodate Indigenous Peoples, affirmed as a constitutional guarantee by the Supreme Court in 2004, has once again returned to the forefront of media coverage and the minds of Canadians. With the Canadian government’s promises of reconciliation, coupled with the highly publicized legal battles related to the Trans Mountain Pipeline Expansion Project, many Canadians have been left confused about the nature of the duty to consult and accommodate Indigenous groups. Moreover, politicians and political commentors have diverging opinions on the impact that the implementation of United Nations Declaration on the Rights of Indigenous Peoples will have on the duty to consult and accommodate Indigenous Peoples. This question and answer guide will use the most recent case law, legislation, and legal scholarship to explain the duty to consult and accommodate Indigenous Peoples, and its important role in the affirmation of treaty rights, Indigenous rights, and reconciliation.

Q: What is the duty to consult and accommodate Indigenous groups?

A: The duty to consult and accommodate Indigenous groups is a principle enshrined within the Canadian Constitution which requires the Canadian (and in some cases provincial) government to consult with and reasonably take into account and accommodate the interests of affected Indigenous groups when the government contemplates action which infringes the treaty rights or Aboriginal rights of an Indigenous community. Thus, to understand the duty to consult and accommodate, one must understand the nature of treaty rights and Aboriginal rights.

Q: What are treaties and what is a treaty right?

A: Treaty rights are the rights set out in a historic or modern treaty agreement. The rights and obligations found within treaties have been recognized and affirmed by Canada’s Constitution, making their fulfilment part of Canada’s highest and most important legal obligations. Treaties are agreements which have been made between European settlers or the Government of Canada and Indigenous groups residing in what is now known as Canada. These agreements form the basis of the relationship between the government and 364 First Nations. Most prominently, treaties define the rights of Indigenous Peoples and European settlers to use the lands which Indigenous groups traditionally occupied. While historic treaties were entered into as early as 1701, the Government of Canada and Indigenous groups are still engaging in treaty negotiation and creation to this day. Modern treaties include agreements like the Nunavut Land Claims Agreement, which helped create the territory of Nunavut. While no two treaties are alike, treaty rights of Indigenous groups can include rights such as ownership of land, water, and natural resources, the harvesting of fish and wildlife, and environmental protection and assessment.

Q: What is an Aboriginal right?

A: Aboriginal rights, also known as Indigenous rights are inherent collective rights which flow from Indigenous Peoples’ historical and continued use and occupation of lands. These rights, like treaty rights, have been recognized and affirmed in Canada’s Constitution. Aboriginal rights vary depending on the customs, practices, and traditions that have formed the distinctive cultures of various Indigenous groups. Thus, the scope of Aboriginal rights has to be determined on a case-by-case basis, often through complex legal battles. Aboriginal rights can include rights such as Aboriginal title (ownership of land), the right to occupy and use lands and resources, the right to hunt and fish, self-government rights, and cultural and social rights.

Q: Is the duty to consult and accommodate a law?

A: Yes. The duty to consult and accommodate is a guarantee that has been enshrined within the Constitution of Canada. If the government fails to exercise this duty, an Indigenous group could bring the government to court to force them to do so.

Q: Can you give an example of a situation which would trigger the duty to consult and accommodate?

A: If an Indigenous group were granted ownership of land through a treaty or has asserted ownership of land through Aboriginal title, and the government wished to permit a company to extract resources from the territory owned by the Indigenous group, the duty to consult and accommodate would be triggered.

Q: Do governments have a duty to consult and accommodate Indigenous groups when creating new laws?

A: The Supreme Court of Canada recently confirmed that Parliament and the provincial legislatures are not required to consult and accommodate Indigenous groups when creating legislation. Despite this, some laws not created by the legislature, such as regulations and rules, may trigger the duty to consult and accommodate.

Q: What does consultation mean and how much consultation is required in each case?

A: The type of consultation required varies with each unique circumstance and must be determined on a case-by-case basis. The duty to consult is said to exist on a “spectrum.” On one end of the spectrum is the simple requirement for the government to provide the Indigenous group notice of their intentions. On the other end of the spectrum is the requirement for the government to obtain consent from the Indigenous group. Where the required consultation falls on this spectrum is determined by the strength of the treaty or Aboriginal right held, the seriousness of the infringement of that right, and the historical context of and existing limitations on Aboriginal rights. The greater the right asserted, the more serious the infringement of the right, and the greater the existing limitations on the Aboriginal or treaty rights of an Indigenous community, the more robust the consultation and accommodation process must be. Despite this, the Supreme Court has noted that consultation need only be reasonable and is not judged against a standard of perfection.

Q: Can an Indigenous group assert an Aboriginal right which has not been evaluated by Canadian courts?

A: Aboriginal rights are often defined through lengthy court battles. An Indigenous group that holds Aboriginal rights may be in the process of determining the scope of those rights through the court system or may have yet to begin the formal process. Consequently, credibly asserted potential rights are considered when determining the nature of the duty to consult.

Q: What are some examples of consultation practices?

A: When a strong level of consultation is required, the government is required to create a process by which they can engage in “meaningful two-way dialogue” with Indigenous groups to grapple with all expressed concerns and explore possible accommodations. An opportunity to make submissions, formal participation in the decision-making process, and the requirement for the government to issue written reasons to indicate how the concerns raised by Indigenous groups were taken into account are all strong consultation practices. Low levels of consultation require the government to notify Indigenous groups of their intentions and listen to, record, and take into account expressed concerns. For example, this could take the form of meetings with Indigenous community leaders.

Q: What does accommodation mean and how much accommodation is required in each case?

A: To accommodate means to offer alternative courses of action and follow through with changes or additions to the government’s plan of action in response to concerns heard by way of the consultation process. The government does not have to provide the specific accommodation sought after by the Indigenous group for their duty to consult and accommodate to be discharged. Nonetheless, the stronger the potential or actual Aboriginal right asserted and the more serious the proposed violation of such rights, the more the government is required to do to discharge their duty. In more serious cases, more serious considerations of accommodations are required.

Q: Are economic interests balanced against the duty to consult and accommodate?

A: No. The duty to consult and accommodate is an absolute right that is guaranteed independent of competing economic interests. The nature of the consultation and accommodation process depends only on the extent of the asserted treaty or Aboriginal right and the seriousness of the contemplated infringement of those rights. Economic concerns are entirely separate from the consultation and accommodation required in each case.

Q: Do Indigenous groups have a say in how they are consulted?

A: Indigenous groups can negotiate and enter into consultation protocol agreements with the Government of Canada. These agreements establish the consultation process which is to be used when the duty to consult and accommodate arises. Consultation protocols establish common expectations between the parties in relation to the consultation process and allow Indigenous groups to voice their concerns well in advance of any formal consultation process. Further, the Indigenous group is not bound to use the protocol on any particular consultation if they choose not to.

Q: Can the government contract out of the duty to consult and accommodate?

A: No. The duty to consult has become a constitutional guarantee in Canada, meaning that no one can agree to avoid or weaken the consultation and accommodation required by law.

Q: What type of infringement of rights would require the consent of an Indigenous group?

A: The Supreme Court of Canada has yet to find an infringement serious enough to require the consent of the Indigenous group. Courts have found that pipeline projects and resource extraction on lands owned by way of Aboriginal title do not require consent. Despite this, the Supreme Court has stated that, where Aboriginal title has been established, the government should always seek to obtain consent.

Q: Are companies subject to the duty to consult and accommodate?

A: While resource extraction and infrastructure companies are often the parties which will engage in the infringing activity, such as building a pipeline or extracting resources, the obligation to consult rests with the federal and provincial governments. The duty to consult cannot be delegated to third parties.  

Q: Who can assert that the duty to consult and accommodate has been breached?

A: As the duty to consult is a collective right owed to the Indigenous group as a whole, only the Indigenous community itself can bring legal action against the government for failing to properly consult and accommodate.

Q: Are there common criticisms expressed by Indigenous groups across Canada with the current state of consultation processes?

A: Each Indigenous community is culturally unique, asserts different treaty and Aboriginal rights, has had unique historical interactions with European settlers, and is affected differently by colonialism. As such, each Indigenous group holds unique criticisms about the adequacy of consultation and accommodation processes. While it would be inappropriate to generalize criticism across all First Nations, many Indigenous communities have expressed feelings of “consultation fatigue.” Consultation fatigue includes feeling that concerns are not adequately heard, feeling forced to retain costly legal representation during each consultation and frustration with a process which does not require consent to dilute historical cultural rights which have been enjoyed in some cases for thousands of years.

Q: Were Indigenous groups consulted in relation to the Trans Mountain Pipeline expansion project?

A: In 2018, the Federal Court of Appeal decided to reject the federal Cabinet’s decision to approve the Trans Mountain Pipeline because the government had breached their constitutional duty to consult and accommodate Indigenous Peoples. The Court found that the government had not engaged in a meaningful dialogue with the affected Indigenous groups and had failed to demonstrate that Canada heard and took into serious consideration the specific concerns Indigenous groups raised. Notably, the Court described the consultation process as a note-taking exercise. The original consultation team was not given the mandate to offer accommodations. The decision required that the government engage in a new consultation and accommodation process. After a second consultation process, the Federal Court of Appeal upheld the federal Cabinet’s renewed approval of the project. The Supreme Court of Canada denied hearing an appeal of the decision, meaning that the decision to approve the project is final. The project and the consultation process remain a divisive issue for Canadians and Indigenous groups. While some affected Indigenous groups do not oppose the project, many continue to oppose the project and the consultation processes used in its approval.

Q: What is free, prior and informed consent and how does it relate to the duty to consult and accommodate?

A: Free, prior, and informed consent is a principle of international human rights law found within the United Nations Declaration on the Rights of Indigenous Peoples. It states that the rights, survival, dignity, and the well-being of Indigenous peoples cannot be diminished or impacted without consultation, and the free, prior and informed consent of the Indigenous group. International scholars note that the principle is not simply about notice and consent, but rather about effective and meaningful participation of Indigenous Peoples, and respect for Indigenous Peoples’ decision-making processes. Currently, the Canadian duty to consult and accommodate falls short of free, prior and informed consent.

Q: What is UNDRIP and how would it change the nature of the duty to consult and accommodate?

A: The United Nations Declaration on the Rights of Indigenous Peoples, also known as UNDRIP, is a list of rights created by the United Nations after decades of consultation with and participation of Indigenous groups from around the world. It was adopted by the United Nations General Assembly in 2007 and endorsed by Canada in 2016. While UNDRIP and other Untied Nations Declarations are “non-binding,” they represent the development of international legal norms and can be cited in Canadian courts. In fact, some Canadian courts have utilized UNDRIP in the interpretation of laws affecting Indigenous Peoples. UNDRIP requires that states obtain free, prior and informed consent before engaging in actions which would affect the rights of Indigenous Peoples. Despite this, most legal scholars agree that Canada would have to create legislation formally adopting and implementing the provisions of UNDRIP before any major changes to Canadian law are seen.

Q: How would Canadian legislation implementing UNDRIP change the nature of the duty to consult and accommodate?

In 2020, Parliament created legislation to bring all laws of Canada in harmony with UNDRIP. The legislation is expected to become active law in 2021. The passage of the law will not automatically impact the government’s existing obligations to consult and accommodate Indigenous Peoples. Courts will have to examine whether the principle of free, prior and informed consent or other principles contained within UNDRIP, such as the right to self-determination, displaces or changes the duty to consult and accommodate as new cases arise. UNDRIP contains a controversial compromise provision which requires a balancing of the rights of Indigenous Peoples with the rights and freedoms of others and the competing requirements of a democratic society. Thus, it remains to be determined whether the implementation of UNDRIP in Canadian law will require an overhaul of the duty to consult and accommodate, require free, prior and informed consent, or a change in the level of consultation required within the existing legal framework. While legal scholars are divided on the legislation’s anticipated impact, it is clear that UNDRIP and its Canadian implementation will offer another tool for Indigenous communities to assert and protect their rights, and for Canada to work towards reconciliation.