Government of Canada and the duty to consult
The Government of Canada has a duty to consult, and where appropriate, accommodate Aboriginal groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights.
About the duty to consult
The Government of Canada's duty to consult with Aboriginal groups was affirmed by the Supreme Court of Canada in the following decisions:
The duty to consult is an important part of the federal government's activities, including for regulatory project approvals, licensing and authorization of permits, operational decisions, policy development, negotiations and more.
Indigenous and Northern Affairs Canada and the duty to consult
Government of Canada departments and agencies are responsible for understanding how and when their activities could have an adverse impact on Aboriginal and treaty rights. Indigenous and Northern Affairs Canada (INAC) coordinates and advises federal officials on the duty to consult by:
- providing policy direction on consultation practices
- sharing information on Aboriginal groups, agreements, claims and more through the Aboriginal and Treaty Rights Information System (ATRIS) and the Consultation Information Service (CIS)
- developing partnerships with Aboriginal groups and organizations
- supporting coordination with provinces, territories and industry partners
- delivering training and guidelines to federal officials on the duty to consult
Federal officials and the duty to consult
Since 2008, Indigenous and Northern Affairs Canada (INAC) has supported federal departments and agencies in fulfilling the Government of Canada's duty to consult by providing guidelines, training, and other tools.
Training of federal officials
INAC offers interdepartmental training sessions across Canada tailored to meet the needs of particular regions. Trainers also lead and facilitate focused training and workshops with particular departments, agencies, sectors or teams upon request.
Training sessions include information on:
- how to assess consultation requirements
- case law as it relates to the duty to consult
- Aboriginal and treaty rights, and strength of claim and treaty rights assessments
- analysis of Crown (Government of Canada) conduct
- how to identify potential adverse impacts of federal activities
- how to assess the scope of consultation and extent of accommodation required
- consultation agreements
- key elements of meaningful consultation processes
- coordination and reliance on existing process
- accommodation options, measures and approaches
- how to assess adequacy of consultation
Thousands of federal employees from all government departments and agencies across the country have been trained to meaningfully consult and, where appropriate, accommodate Aboriginal groups. Each year, new training sessions for officials are organized and implemented across the country to continue this work.
To find out more, send a request by email to email@example.com.
Since 2004, two national engagement processes on consultation and accommodation with First Nations, Inuit and Métis communities and organizations as well as provinces, territories and industry partners have informed the creation of the Interim Guidelines for Federal Officials to Fulfill the Duty to Consult (2008) and Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011).
The updated guidelinesprovide practical advice and guidance to federal departments and agencies in determining when the duty to consult may arise and how it may be fulfilled, as described by the Supreme Court of Canada in the Haida, Taku River and Mikisew Cree decisions.
A third national engagement process from May to August 2015 was led by Mr. Bryn Gray, Ministerial Special Representative, to seek input from Aboriginal groups, provinces, territories and industry representatives on three documents:
- Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011)
- Draft Public Statement to Clarify Canada's Approach to Consultation and Accommodation
- Draft Consultation and Accommodation Advice for Proponents
Mr. Gray, submitted his final report entitled "Building Relationships and Advancing Reconciliation through Meaningful Consultation" to the Minister of Indigenous and Northern Affairs in 2016. The report provides a summary of the feedback received from Indigenous groups, governments and industry representatives on Canada's current approach to consultation and accommodation with Indigenous groups. The report also provides key recommendations for continuing to strengthen the Government of Canada's approach to consultation and accommodation and to align it with current government priorities.
The report will be reviewed and used to assist the government-wide effort to renew the relationship between Canada and Indigenous peoples based on recognition of rights, respect, cooperation and partnership.
Indigenous and Northern Affairs Canada (INAC) coordinates with federal departments and agencies to build, maintain and strengthen relationships with Aboriginal peoples, provinces, territories, industry and the public. To support an effective and efficient whole-of-government approach to consultation and accommodation, INAC is committed to developing relationships with Aboriginal peoples. This approach ensures that Aboriginal groups are appropriately consulted when the federal government considers action that may have an adverse effect on potential or established Aboriginal or treaty rights.
The Government of Canada signs consultation protocols with Aboriginal groups to create a process to follow when consulting on potential adverse impacts to Aboriginal or Treaty rights.
- facilitate engagement
- promote relationship building
- clarify roles and responsibilities between governments and Aboriginal communities
Protocols provide a more efficient approach through which governments can consult Aboriginal groups. To learn more about consultation protocols, visit Strengthening Partnerships: Consultation Protocols.
There are currently consultation protocols in place with a number of Aboriginal groups across Canada:
- The Terms of Reference for a Mi'kmaq-Nova Scotia-Canada Consultation Process
- The Mi'kmaq-Prince Edward Island-Canada Consultation Agreement
- The Mi'gmaq-Quebec-Canada Interim Tripartite Agreement on Mi'gmaq Consultation and Accommodation (Gaspé region)
- Two protocols with the Dene Tha' First Nation: The Mackenzie Gas Pipeline (MGP) Consultation Protocol and the Federal Authorizations Consultation Protocol (FACP).
- The Métis Nation of Ontario
- The Algonquin-Ontario-Canada, Consultation Process Interim Measures Agreement
Interdepartmental consultation and accommodation team
The Government of Canada's Consultation and Accommodation Interdepartmental Team includes over 25 federal departments and agencies. Teams in Ottawa-Gatineau and in the regions meet regularly to discuss emerging policy and operational issues, share consultation and accommodation experiences, provide information, and coordinate consultation efforts. The team has been extremely useful in evaluating ideas and suggestions for government departments and agencies as they encounter new challenges related to the duty to consult.
Memoranda of Understanding
Indigenous and Northern Affairs Canada (INAC) assists in developing informal agreements, known as memoranda of understanding (MOUs), between provincial or territorial governments and the Government of Canada. These MOUs are part of an enhanced communication and coordination approach to consultation, which also includes:
- on-going information sharing
- strengthening a community of practice
- discussing key issues for collaboration
MOUs aim to reduce overlapping processes of consultation and accommodation with other jurisdictions and consultation fatigue on the part of Aboriginal groups.
Canada has concluded an MOU with the Province of Nova Scotia, and is working towards others with a number of provinces. These agreements demonstrate their mutual commitment to strengthen collaborative efforts and to coordinate and share information on Aboriginal consultation processes.
The commitment of the parties to the MOU to exchange experiences, ideas and best practices in the field of Aboriginal consultation will foster new approaches and tools to assist in decision-making.
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