Duty to consult 101: A practical guide

This article was prepared with the assistance of summer law student Cory Kroeger.

The duty to consult is a constitutional obligation that can affect the timing, approvals and risk profile of projects across Canada. It requires federal and provincial governments, collectively referred to as the Crown, to consult and, where appropriate, accommodate Indigenous groups before making decisions that may adversely affect asserted or established Aboriginal or Treaty rights.

Early and meaningful engagement and a clear understanding of rights, regulatory obligations and relationships can help reduce uncertainty and support better outcomes.

When does the duty to consult arise?

The duty to consult is triggered when three elements are present:

• The Crown has knowledge of an asserted or established Aboriginal or Treaty right.
• The Crown is contemplating conduct or a decision.
• That conduct or decision may adversely affect the right.

What rights are protected?

The Crown must have knowledge of an Indigenous group’s asserted or established rights. These rights generally fall into two categories:

1. Treaty rights: Rights agreed to between Indigenous Peoples and the Crown.
2. Aboriginal rights: Traditional, inherent rights practiced when the Crown asserted sovereignty over a particular area of Canada.

What does meaningful consultation look like?

The duty to consult guarantees a process, not a particular outcome. At a minimum, consultation will usually require:

• notice of the contemplated decision;
• information about potential impacts;
• an opportunity for the Indigenous group to provide comments; and
• consideration of accommodation where adverse impacts may arise.

In more complex matters, consultation may require deeper engagement, including a strength-of-claim analysis, capacity funding, in-person meetings, written reasons, mitigation measures or, at the deepest end of the consultation spectrum, consent or participation in the decision itself.

How deep does consultation need to go?

The level of consultation depends on two key factors:

1. the strength of the claimed right; and
2. the seriousness of the potential impact.

This is often described as the “consultation spectrum.” While procedural aspects of consultation are often delegated to project proponents, the Crown remains ultimately responsible for fulfilling the constitutional duty.

How is the classic framework changing?

Several developments are creating new pressure points for the classic duty to consult framework:

• UNDRIP and FPIC: The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognizes rights including self-determination, self-government and free, prior and informed consent (FPIC) for development affecting Indigenous territories. Canada’s UNDRIP Act commits the federal government to aligning federal laws with the Declaration, but the legal effect of UNDRIP in Canadian consultation law remains unsettled.
• Major-project legislation: Streamlined approval processes for projects deemed to be in the national interest may create tension with the Crown’s obligation to maintain an open mind during consultation.
• Cumulative effects: Courts and decision-makers are increasingly considering the broader effects of development in a region when assessing impacts on Indigenous rights, even though the duty to consult has traditionally focused on current Crown conduct.

Unresolved issues in the duty to consult framework can create significant uncertainties.

What this means for proponents

Project proponents do not hold the Crown’s constitutional duty, but they often play a central role in the consultation process. Proponents are frequently responsible for sharing project information, identifying potential impacts, responding to concerns and documenting engagement.

Practical steps can include:

• identifying potentially affected Indigenous groups early;
• understanding asserted and established rights in the project area;
• building realistic consultation timelines into project planning;
• keeping clear records of engagement, concerns raised and responses provided;
• considering mitigation, accommodation and benefit-sharing options with an open mind; and
• aligning engagement strategy with regulatory requirements and project approvals.

How can risks be managed?

Uncertainties are best managed through early, meaningful engagement that is aligned with the legal framework and responsive to the priorities of potentially affected Indigenous communities. Depending on the project, this may include:

• impact benefit agreements;
• relationship agreements;
• equity participation;
• capacity funding;
• clear and respectful communication; and
• an open mind toward mitigation and accommodation.

Key takeaway

The duty to consult remains a constitutional process rooted in reconciliation. But UNDRIP, major-project approval processes and cumulative-effects issues are making consultation more complex. For governments, Indigenous groups and project proponents, early and meaningful consultation is increasingly essential.

How MLT Aikins can help

The MLT Aikins Indigenous practice group works with Indigenous communities, governments and project participants on matters involving Treaty and Aboriginal rights, consultation and accommodation, governance, economic development, environmental assessment, regulatory processes and resource-sector agreements.

Our team can help clients:

• assess consultation obligations and project-related rights impacts;
• develop practical engagement and accommodation strategies;
• negotiate impact benefit agreements, relationship agreements and consultation arrangements;
• support Indigenous governance, jurisdiction and decision-making processes;
• advise on environmental assessment, regulatory approvals and project development; and
• manage disputes and litigation risks.

Whether the goal is advancing Indigenous self-determination, structuring project partnerships or managing consultation risk, MLT Aikins brings focused Aboriginal law experience together with the resources of a full-service Western Canadian business law firm.

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