1.1 Legal Duty to Consult and Accommodate
An Audit of Consultation and Accommodation was included in the 2014-2015 to 2016-2017 Risk-Based Audit Plan approved by Aboriginal Affairs and Northern Development Canada’s (AANDC) Deputy Minister on February 6, 2014. The audit was identified as a priority area due to the significant legal ramifications and liabilities that may result from not adequately consulting with Aboriginal groups when AANDC, on behalf of the Crown, contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights.
The Government of Canada consults with Canadians on matters of interest and concern to them. Consulting is an important part of good governance, sound policy development and decision-making. Through consultation, the Crown seeks to strengthen relationships and partnerships with Aboriginal peoples and thereby achieve reconciliation objectives. In addition to pursuing policy objectives, the federal government consults with Aboriginal peoples for legal reasons. Canada has statutory, contractual and common law obligations to consult with Aboriginal groups.
The legal duty to consult is based on judicial interpretation of the obligations of the Crown (federal, provincial and territorial governments) in relation to Crown conduct that could impact adversely potential or established Aboriginal or Treaty rights of the Aboriginal peoples of Canada, recognized and affirmed in Section 35 of the Constitution Act, 1982. The legal duty cannot be delegated to third parties.
|Good Governance / Policy Reasons
- Make informed and appropriate decisions
- Create and improve working relations with all those affected
- Address new business and policy developments
- S.35 Common law requirements
- Statutory requirements
- Agreements / contractual requirements
The Supreme Court of Canada (SCC) has held that the Crown has a legal duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights. This legal duty to consult has been applied to an array of Crown actions and in relation to a variety of potential or established Aboriginal or Treaty rights.
The courts have generally left to government the detailed exercise of implementing processes, procedures, and tools that seek to fulfill the legal duty to consult. An awareness of the legal duty and a consideration of when and how it might apply is expected to become part of the government’s daily business. A wide range of consultation practices exist and are being implemented by federal departments and agencies across the country to better fulfill the legal duty to consult and, where appropriate, accommodate.
The development of a federal approach to consultation and accommodation is not intended to be a one-size-fits-all approach. Differences in history, geography, demographics, governance, relationships and other circumstances of Aboriginal communities and organizations in Canada are relevant when considering how to address any consultation obligations that may arise. Thus, understanding the historical, geographic and legal context relevant to Crown activities is essential.
Issues addressed in the legal duty to consult are specific to the location and nature of the activity. Consultation procedures and approaches must be adapted to address the different kinds of rights and Crown obligations that are at issue. There is significant variability across the country and differences in contexts and strength of claims of Section 35 rights by Aboriginal communities can require different approaches to fulfilling the legal duty to consult and, where appropriate, accommodate.
Departmental and agency approaches to consultation should integrate, to the extent possible, the fulfilment of legal duty to consult obligations with departmental policy objectives and with other overarching government policy objectives.
It is important to note that consultation does not always lead to accommodation. The courts have determined that the legal duty to consult is exercised along a wide spectrum, according to the strength of the claim. Fulfilling the legal duty can include simply providing information to the Aboriginal community right up to meaningful involvement which could be as far as obtaining consent. The courts were also clear, however, that this legal duty to consult does not impose a legal duty to reach an agreement and it does not give Aboriginal groups a veto over proposed projects.
Consultation and Accommodation within AANDC
Within AANDC, Sector activities can adversely impact potential or established Aboriginal or Treaty rights and, thus, may trigger a legal duty to consult. AANDC Sectors and examples where the Crown’s legal duty to consult is an obligation in relation to rights under Section 35 of the Constitution Act include:
- Lands and Economic Development (LED): Additions to Reserve (ATR); reserve creation; and, environmental management activities on reserve lands. Before setting apart land as Reserve, AANDC will consider the impact of such action on the Aboriginal or Treaty rights of other Aboriginal Groups;
- Treaties and Aboriginal Government (TAG): negotiating and signing land claim agreements in regions with overlapping claims; and,
- Northern Affairs Organization (NAO): contaminated sites remediation activities; approval of Type A water licences; and, licences to prospect and prospecting permits, mineral leases, mineral claims.
The Crown has adopted a whole-of-government approach to Aboriginal consultation and AANDC has been mandated to lead the development and support the implementation of this approach. The AANDC Consultation and Accommodation Unit (CAU) was established in 2008 under the Policy and Strategic Direction (PSD) Sector to provide support to federal departments, agencies and their officials as they work to fulfill their respective legal duties on Aboriginal consultation and accommodation. CAU is now part of the Treaty and Aboriginal Government (TAG) Sector.
CAU’s primary activities can be subdivided into three main areas:
- Policy and Training – the CAU policy team develops broad policy guidance and advice, as well as develops modules for the training sessions on various aspects of consultation and accommodation. Both basic and advanced training sessions have been developed and offered in HQ and regionally. To date, training has been given to over 2,700 federal officials, both within AANDC and for other departments.
- Consultation Information Service (CIS) - is a single window which provides information relevant for consultations to external stakeholders, and advisory input for federal departments and agencies with responsibilities for consultation. CIS also manages the Aboriginal and Treaty Rights Information System (ATRIS). ATRIS is an electronic system created by CAU, that brings together information on the location of Aboriginal communities, related profile data, protocol and agreement information, and information pertaining to their potential or established Aboriginal or Treaty rights; and,
- Partnerships - in supporting the whole of government approach, the CAU Partnerships team supports the Crown’s negotiations and signings of consultation protocols and Memoranda of Understanding (MOU) with provinces and territories. Within the CAU, Regional Consultation Coordinators (RCCs) liaise with federal government departments, regional/local Aboriginal groups, provinces and territories and industry by establishing and maintaining relationships with other government departments and agencies, provinces and territories, and industry with regards to consultation.
In 2011, the CAU updated the Guidelines for Federal Officials to Fulfill the Duty to Consult. The updated Guidelines are designed to provide practical advice and guidance to federal departments and agencies in determining when the legal duty to consult may arise and how it may be fulfilled. The content of the Guidelines are informed by the Crown’s understanding of the legal parameters of the legal duty to consult and provide policy-based, step-by-step guidance to assist officials in their efforts to effectively incorporate consultations, and, where appropriate, accommodation to government activities and processes.
Within AANDC, the CAU provides advice and support to Sectors, however, Sectors are responsible for developing processes for fulfilling the Crown’s legal duty to consult and accommodation obligations. Sectors have, in turn, developed specific guidelines, tools, and operational procedures with respect to fulfilling the Department’s legal duty to consult obligations. The CAU continues to provide support to AANDC Sectors to ensure that they adequately comply with the legal obligations for the duty to consult, helps address issues/concerns and any specific need/requirement on other Department policy or program issues, and, provides positions and feedback on policy and litigation issues.