Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult - March 2011

1. Historical and Geographical

The application of common approaches to consultation and, where appropriate, accommodation across the country must be reconciled with the fact that potential or established Aboriginal or Treaty rights vary in both scope and content. Such rights vary depending on the historical presence of Aboriginal groups, including the historical relationship between particular Aboriginal communities and between the Aboriginal communities and the Crown, in different areas of the country. For example, Aboriginal communities may be signatories to historic treaties, comprehensive land claim agreements, and self-government agreements or be claiming many different kinds of Aboriginal rights and overlapping territories.

Issues addressed in consultation 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.

For example, in British Columbia and Quebec, there are a few Treaties but many overlapping assertions of Aboriginal rights and title, when compared with the Peace and Friendship Treaties in the Maritimes and the historic Treaties in Ontario and in the Prairie provinces. This landscape differs from the modern Treaties in the territories, northern B.C., and in James Bay, some of which contain specific consultation provisions.

2. Legal

In addition to the common law duty to consult, there are a number of other legal reasons for the Crown to consult with Aboriginal groups, including specific requirements to consult that are set out in statutes and regulations as well as provisions in land claim agreements, self-government agreements and consultation agreements.

It is important to identify the legal source of potential consultation obligations as this will inform and guide what is required in the particular context, including the interplay between these other legal reasons to consult with Aboriginal groups and the common law duty. Departments and agencies should work with their counsel to understand what legal considerations are relevant to their activities.

3. International

On November 12, 2010 Canada issued a Statement of Support endorsing the United Nations Declaration on the Rights of Indigenous peoples (Declaration), an aspirational document, in a manner fully consistent with Canada's Constitution and laws. The Declaration describes a number of principles such as equality, partnership, good faith and mutual respect. Canada strongly supports these principles and believes that they are consistent with the Government's approach to working with Aboriginal peoples.

However, Canada has concerns with some of the principles in the Declaration and has placed on record its concerns with free, prior and informed consent when interpreted as a veto. As noted in Canada's Statement of Support, the Declaration is a non-legally binding document that does not change Canadian laws. Therefore, it does not alter the legal duty to consult. A copy of Canada's statement of support, along with other materials, can be found at: United Nations Declaration on the Rights of Indigenous Peoples.

Guiding Principle No. 1

The Government of Canada, in carrying out its activities, will respect the potential or established Aboriginal or Treaty rights of First Nation, Métis and Inuit people by consulting with Aboriginal groups whose rights and related interests may be adversely impacted by a proposed Government of Canada activity.

Guiding Principle No. 2

The Government of Canada will assess how proposed federal activities may adversely impact on potential or established Aboriginal or Treaty rights, Aboriginal groups and their related interests. As part of this assessment, the Government of Canada will identify when consultation should form part of their operations and ensure that consultations are initiated early in the planning, design or decision making processes.

Guiding Principle No. 3

Early consultations will assist the Government of Canada in seeking to identify and address Aboriginal concerns, avoid or minimize any adverse impacts on potential or established Aboriginal or Treaty rights as a result of a federal activity and assess and implement mechanisms that seek to address their related interests, where appropriate.

Guiding Principle No. 4

Consultation and accommodation will be carried out in a manner that seeks to balance Aboriginal interests with other societal interests, relationships and positive outcomes for all partners. A meaningful consultation process is one which is:

• carried out in a timely, efficient and responsive manner;
• transparent and predictable;
• accessible, reasonable, flexible and fair;
• founded in the principles of good faith, respect and reciprocal responsibility;
• respectful of the uniqueness of First Nation, Métis and Inuit communities; and,
• includes accommodation (e.g. changing of timelines, project parameters), where appropriate

Guiding Principle No. 5

The Government of Canada recognizes that Aboriginal consultation is a Crown responsibility that flows from Government activities. The Government of Canada will ensure that a lead federal department or agency is identified and made accountable for any consultation processes that may be carried out for federal government activities. Should a consultation process move a department or agency beyond their mandate, mechanisms will be in place to address additional issues raised in a consultation process.

Guiding Principle No. 6

The Government of Canada will use and rely on, where appropriate, existing consultation mechanisms, processes and expertise, such as environmental assessment and regulatory approval processes in which Aboriginal consultation will be integrated, to coordinate decision making and will assess if additional consultation activities may be necessary.

Guiding Principle No. 7

The Government of Canada will coordinate consultation and accommodation activities with its partners (e.g. Aboriginal groups, provinces, territories and industry). While the Crown cannot delegate its obligation, the Government of Canada will, where appropriate, use consultation processes and accommodation measures carried out by its partners to assist it in meeting its commitments and responsibilities.

Guiding Principle No. 8

The Government of Canada will carry out its activities and related consultation processes in accordance with its commitments and processes involving Aboriginal groups. The Government of Canada will seek out opportunities to develop and maintain a meaningful dialogue with Aboriginal groups in support of building relationships with its partners.

Federal Departments and Agencies

An effective consultation process requires collaboration with Aboriginal groups and coordination and cooperation within the federal government and with other jurisdictions and stakeholders, as appropriate.

The Crown as a whole must fulfill its duty to consult and, where appropriate, accommodate. In turn, each federal department or agency must support the Crown's efforts in meeting this obligation. To do so, departments and agencies must assess the consultation requirements that relate to their respective activities and develop approaches to consultation and accommodation that will allow the Crown as a whole to meet its duty. Some departments and agencies may have existing processes and/or mandates which may assist in fulfilling the duty.

Coordination between the relevant federal departments and agencies is essential to ensure that the Crown is responsive and able to relate effectively with the Aboriginal groups involved. Limitations on the mandate of any one department, agency or other federal entity will not limit what is required of the whole Crown in the circumstances (Refer to Guiding Principle and Directive #5).

The designation of a lead department, agency or committee is recommended to oversee and track all consultation efforts and the issues raised by Aboriginal groups. The lead will follow up with relevant departments and agencies to ensure that they take appropriate action in relation to any consultation processes that may be carried out for federal government activities. The lead will also act as the federal point of contact for Aboriginal groups, industry representatives and various stakeholders.

As mentioned in Guiding Principle and Directive #6, in seeking to ensure that its obligations towards Aboriginal groups are satisfied, Canada will use and rely on, where appropriate, existing consultation mechanisms, processes and expertise, such as environmental assessments and regulatory approval processes that allow it to gather information and address issues raised by Aboriginal groups.

Agencies, boards, commissions and tribunals, including the National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC) have a role to play in assisting the Crown in discharging, in whole or in part, the duty to consult. The role to be played by any given board, commission or tribunal is determined by its statutory mandate or its terms of reference. More specifically, an ability to address questions of law and an ability to remedy or address consultation related issues will inform the role of such boards, tribunals and commissions in Crown consultation processes.

Departments with responsibilities for real property management such as disposal should be aware of Aboriginal interests in federal Crown land under their management. While decisions to dispose of federal Crown land is the most common trigger for a duty to consult in real property matters, there are other aspects of land management, such as access restrictions, management of burial sites and infrastructure. Guidance on this subject can be found in the Treasury Board Secretariat's Guide to Real Property Management: Aboriginal Context.

Provinces and Territories

The Crown's duty to consult applies to provincial and territorial governments. Some have instituted their own Crown consultation processes, policies and guidelines for projects within their jurisdictions. Departments and agencies should look at provincial, territorial and community websites for additional information on provincial, territorial, regional or community-specific consultation agreements and protocols, processes and policies. They can also contact the AANDC Regional Consultation Coordinator. Inquiries can be sent to CAU-UCA@aandc-aadnc.gc.ca.

Guiding Principle and Directive #7 speaks to Canada coordinating its consultation and accommodation activities with those of its partners (e.g. Aboriginal groups, provinces, territories and industry). For initiatives involving federal, provincial and territorial governments, opportunities to coordinate efforts between jurisdictions should be pursued to the maximum extent possible, to increase efficiency by minimizing duplication.

Departments and agencies are encouraged to develop long-term working relationships and processes rather than work together only on an ad hoc or case-by-case basis. Where both federal and provincial or territorial governments are involved in an activity, their consultation efforts should be coordinated. In some instances, Canada, with their agreement, may wish to use provincial or territorial consultation processes to fulfill, in whole or in part, its consultation obligations. Federal departments and agencies will need to assess these processes to ensure that they lead to a meaningful consultation and are capable of addressing matters related to federal activities.

AANDC, on behalf of Canada, will engage with provincial and territorial partners to explore the potential for developing memoranda of understanding aimed at reducing duplication, working collaboratively, sharing information and improving collaboration on Aboriginal consultation. Consultation agreements with provinces/territories and First Nation, Métis or Inuit groups may also assist in addressing consultation and accommodation issues.

In 2007, federal, provincial and territorial Deputy Ministers Responsible for Aboriginal Affairs agreed to establish an ongoing information- and priority-sharing process on Aboriginal consultation and accommodation across their respective jurisdictions. The Federal/Provincial/Territorial working group has made real progress in relation to the duty to consult. Key areas that have been explored include: capacity, the duty to consult and the Métis, traditional land use studies as a tool to inform consultation processes, developing information repositories, coordination, inter-jurisdictional challenges and approaches to dealing with municipalities.

Aboriginal Groups

In keeping with court decisions on consultation, Guiding Principle and Directive #4 makes it clear that First Nation, Métis and Inuit groups have a reciprocal duty to participate in reasonable processes and Crown efforts to consult and accommodate them. It is in the interest of all concerned parties to develop effective processes and agreements that reflect shared interests and contribute to a consultation process that creates clarity, certainty, trust and reliability. In that respect, the Crown may reasonably expect Aboriginal groups to:

• clearly outline in a timely manner any potential adverse impacts of the Crown activity, or that of a third party, on the nature and scope of their potential or established Aboriginal or Treaty rights and related interests;
• make their concerns known to the Crown and share any other relevant information that can assist in assessing the strength of their claim or the seriousness of any impacts on their potential or established Aboriginal or Treaty rights and related interests;
• attempt to resolve any issues with any other Aboriginal groups with overlapping claims and interests;
• attempt to reach a mutually satisfactory resolution to a particular situation;
• consider that they do not have a veto over the proposed project; that consultation may not always lead to accommodation or that there may not always be agreement on what accommodation measures may be appropriate.

Third Parties

All industry sectors seek predictable timelines, clarity on the respective roles of parties, certainty and criteria to determine the adequacy of consultation and accommodation. Industry representatives indicate that earlier government consultations at the federal, provincial and territorial levels would help to establish a transparent process for the proponent, Aboriginal communities and the Crown.

The Crown could discuss with industry proponents early in the process about the possibility and extent to which it may rely on the proponent's engagement with Aboriginal groups as part of the formal consultation and accommodation process. Creating this understanding early in the planning stages of a project could help to define each party's roles and responsibilities and expectations.

Third parties, such as proponents, do not have a legal obligation to consult Aboriginal groups. The Crown may delegate to the proponent such aspects of consultation as the gathering of information about the impact of the proposed project on the potential or established Aboriginal or Treaty rights. The Crown should clearly communicate what is expected of third parties to industry proponents, Aboriginal groups and various stakeholders. The role that a third party can play in carrying out consultation and accommodation processes should be incorporated into any Crown consultation plans and efforts. The information collected during these processes, for example, can be used by the federal government and its officials in its decision-making process.

Industry's overall relationship with Aboriginal groups, including its business practices, can assist the Crown's overall consultation and accommodation efforts. Industry proponents are often in the best position to accommodate an Aboriginal group for any adverse impacts on its potential or established Aboriginal or Treaty rights, for example, by modifying the design or routing of a project. Canada will seek to benefit from the outcomes of a third-party consultation process and any accommodation measures undertaken by third parties. However, the ultimate responsibility for consultation and accommodation rests with the Crown as the Honour of the Crown cannot be delegated.

There are some formalized processes for industry involvement in Aboriginal consultation such as in the case of oil and gas development in the Treaty 8 area within B.C.'s north-east. Ontario's new mining legislation includes measures to ensure that proponents consider Aboriginal consultation.

1) Identify Crown conduct in relation to the duty to consult

Crown conduct refers to the Crown's own activities, such as land disposal, park creation, infrastructure development, Treaty implementation, or to Crown activities and authorizations and permits for projects to be carried out by a third party. Refer to Guiding Principle and Directive #1 for some examples of government actions that may adversely impact potential or established Aboriginal or Treaty rights.

The duty extends to "strategic, higher level decisions" that may have an impact on potential or established Aboriginal or Treaty Rights. These could include structural or organisational changes that reduce the Crown's oversight and decision-making ability.

By becoming familiar with their departmental or agency mandate and objectives and the related activities that may adversely impact on the rights of Aboriginal groups, departments and agencies will:

1. be able to identify which of their activities, policies and programs may give rise to the duty to consult;
2. be able to support a department or agency to support the consultation or accommodation activities of other departments or agencies whose Crown conduct has given rise to a duty to consult. This may apply even when their own activities do not give rise to a duty to consult.

See "Part C, Phase 2 – Crown Consultation Process" for a detailed list of questions for consideration.

2) Assess potential adverse impacts of departmental and agency activities

As highlighted in Guiding Principle and Directive #3, by assessing, in advance, what might be the adverse impacts of their activities, departments and agencies can determine how these impacts could be avoided or mitigated and what related measures may be taken by the federal, provincial and territorial governments and/or industry.

Departmental and agency officials should anticipate the types of accommodation measures that may be needed to address the kinds of adverse impacts that their activities may have on potential or established Aboriginal or Treaty rights and related interests. This will help managers and officials prepare for consultation processes, as the department or agency will define, in advance, the role it can generally play in relation to accommodation, examine the potential role of other federal departments and agencies or other governments, the role of the proponent, the steps that can be taken by each, the approvals that may need to be sought, the authorities required, etc. See "Part C, Phase 3 – Accommodation" for more information on accommodation.

3) Identify potential or established Aboriginal or Treaty rights and related interests

Managers should be familiar with the nature and location of these rights in their respective regions so that they are able to anticipate how these rights may be adversely impacted by their Crown conduct. A departmental approach must also take into account the diversity of potential or established Aboriginal or Treaty rights in each region across Canada.

Canada's Treaty relationship with groups is an important consideration in assessing how to proceed with Crown conduct in a Treaty area. Departments and agencies will also need to obtain information about relevant Treaty land entitlement agreements, comprehensive land claims agreements, self-government agreements or negotiations in a region.

An Aboriginal group may also have interests related to its potential or established Aboriginal or Treaty rights that may be adversely impacted by the proposed Crown conduct. The Crown may, for policy reasons, seek to address these related interests. As a result of a consultation process, the Crown may determine that there is no duty to accommodate, however it may still choose, for policy reasons, to address a related interest that is expressed by the Aboriginal group in the context of the activity.

For example:

1. An Aboriginal group may have an established hunting right that could be impacted by an activity and express a related interest in declaring a certain area of their traditional territory as a wildlife conservation zone to maintain a viable population of the wildlife.
2. The Crown is implementing measures to mitigate an adverse impact on an Aboriginal right. It can decide at the same time to address an expressed related interest from the Aboriginal group for economic development funding to take part in the project.
3. In the context of claims negotiations, an Aboriginal group expresses a related interest for federal lands that are being considered for disposal. After assessing any requirement to consult, the Crown may also choose to engage with the group for policy reasons.

4) Develop a departmental or agency approach to consultation and accommodation

The four previous steps lay the groundwork for the development of a departmental or agency approach to consultation and accommodation that is consistent with the Updated Guidelines and appropriate for the different types of activities of a department or agency. However, given the breadth of activities carried out by most departments, a departmental approach may have to include elements that would be specific to various programs and directorates.

Principle #4 states that officials should seek to develop consultation processes that move beyond a project-by-project approach to a comprehensive approach that will support their officials when making case-specific decisions. Developing consultation processes that can be consistently applied is more effective than consulting on a one-off basis. Some existing consultation practices may already be in place within a region or department or agency and may offer a foundation upon which to build effective consultation processes.

The overall relationship between the Crown and an Aboriginal group will influence, and be influenced, by how consultation and accommodation issues are being addressed by each department and agency. Managers must keep an eye on the "big picture" as their department's handling of a consultation file may strengthen or weaken Canada's relationship with a particular First Nation, Métis or Inuit group, thereby influencing not only their own department's or agency's future dealings with that community, but also the future dealings of other departments and agencies.

Determine whether there are any statutes or regulations that require the department or agency to consult with Aboriginal groups in relation to their activities or consider traditional knowledge (such as provisions in the Species at Risk Act, Canada National Parks Act).

Determine whether there are contractual requirements to consult in relation to departmental and agency activities such as consultation agreements or consultation provisions in comprehensive land claim agreements.

It is the responsibility of departments and agencies to develop consultation processes that respect consultation agreements or modern Treaty obligations. There may be other agreements, such as interim measures agreements or notification agreements, that contain guidance related to how the parties should be notified about Crown activities or how the parties can work together to resolve issues.

Developing effective working relationships through networks and forums with Aboriginal communities as well as with other departments and agencies in the region, with provincial and territorial counterparts and with industry will, in the long run, assist federal managers and their officials in leading consultation and accommodation efforts.

Departments and agencies with the advice of AANDC may also want to consider whether consultation agreements could support consultation activities. These arrangements between the Crown and Aboriginal groups can help to define roles and responsibilities, identify points of contact, determine timelines and steps to be followed and sometime address capacity needs. They can create clarity for the parties, and allow them to strengthen their relationship while making consultation more efficient.

Consultation agreements can facilitate the coordination of consultation processes that involve multiple departments and agencies (federal, provincial and territorial) and stakeholders. The AANDC Regional Consultation Coordinators will explore and negotiate consultation arrangements and protocols with Aboriginal groups and provinces and territories to achieve coordinated and efficient processes for Crown consultations.

Officials should assess whether provisions in land claim agreements or self-government agreements require that consultation take place in relation to legally binding international instruments. Second, officials must determine whether legislation requires Canada to consult on international instruments. Officials should seek legal advice, which will support the broader departmental or agency assessments and decision-making processes.

5) Coordinate with partners, and/or rely on other consultation processes

1) General considerations

• Ensure that officials are adequately equipped with the appropriate tools, resources and training to carry out meaningful and reasonable consultation efforts in each case. The development of a departmental or agency approach will support them in addressing case-specific issues.
• Put into place a records management system and procedure to document and file agendas, meeting notes, correspondence, actions, decisions, and ensure that procedures are used consistently by officials. Recording in a consistent format and storing in an accessible and retrievable location all relevant consultation meeting records and correspondence with Aboriginal groups is important to ensure that a complete record of the process, the concerns raised and the efforts to address such concerns are documented. Where more than one department or agency is involved, departments and agencies are encouraged to use a central or shared document storage system, wherever possible.
• Ensure officials are aware that all meetings and correspondence are "on the record" to enable the Crown to rely on such information, if necessary, in court. Information provided to government may be subject to Access to Information Act requests. Therefore specific measures may be required before agreeing to any confidential or off-the-record discussions or treatment of documents. Consult Department of Justice Counsel before determining how discussions or particular materials exchanged in the course of the consultation process may be treated or classified.

2) Organizational, financial and human resources considerations

Throughout the development and implementation of Crown activities and any corresponding consultation processes, officials must ensure meaningful consultation such as: timely sharing of detailed information about the activity; providing support, as required, to Aboriginal groups to achieve the objective of meaningful participation in consultation processes; providing enough time for Aboriginal groups to assess adverse impacts and present their concerns, promoting discussion with communities about impacts and ways these can be avoided or mitigated, etc.

To achieve this, departments and agencies need to have access to financial, human and technological resources that can be used for consultation and accommodation activities. They must also identify what role could be played by other partners to support the fulfillment of the duty.

Departmental or agency approaches should take into account the following:

• Assessment of departmental and agency activities that may give rise to a duty to consult;
• Assessment of any potential adverse impacts of departmental and agency activities, the severity of impact and the strength of any potential or established Aboriginal or Treaty rights to determine the scope of the duty to consult and related consultation processes;
• Frequency of consultation-related activities;
• Assessment and documentation of resource requirements for Aboriginal consultation and accommodation activities. For example, departments and agencies should consider the cost implications for the participation of Aboriginal groups, which includes determining whether their program and financial authorities can assist them in funding Aboriginal consultation-related activities;
• Records management systems to document the consultation and accommodation process;
• Human resources required to plan, research, implement and monitor reasonable and meaningful consultation processes, namely a skilled, trained and informed staff;
• Other departmental and agency policies, programs, initiatives that may complement and support the fulfillment of the duty;
• Opportunities, through protocols or Memoranda of Understanding, for collaboration, relationship building and sharing costs of consultation and accommodation with other federal departments and agencies, provincial and territorial governments and industry, and opportunities to better integrate consultation processes;
• Internal and external communications related to consultation activities;
• Approval processes and procedures;
• Evaluation of consultation and accommodation activities undertaken;
• Existing financial authorities that can support internal or external consultation and accommodation related expenditures such as capacity funding to Aboriginal groups, where appropriate. For example, the Canadian Nuclear Safety Commission and the National Energy Board have participant funding programs to support Aboriginal consultation in the review of major energy projects. The Canadian Environmental Assessment Agency can provide funding in relation to projects that are assessed by a review panel or a comprehensive study under the Canadian Environmental Assessment Act. The Canadian Environmental Assessment Agency participant funding program includes an Aboriginal funding envelope to provide support to Aboriginal groups to assist them with regard to Aboriginal or public consultation activities;
• Financial resources at the disposal of the departments and agencies and opportunities to seek additional resources (e.g. Treasury Board submissions). For example, federal officials can refer to legislation and to Treasury Board Secretariat guidelines on expenditures as well as departmental or agency-specific policies, directives, guidelines and practices; and,
• Other consultation-related needs such as dispute resolution processes.

In some instances, First Nation, Métis or Inuit groups may seek financial assistance to support their participation in the consultation process. Officials should first determine if there are other means available to support Aboriginal capacity to participate in the consultation process, for example, whether other partners are able to contribute to capacity funding or other forms of assistance to Aboriginal groups.

See "Part C, Phase II – Crown Consultation Process" for more details on ways to support meaningful consultation.

3) Training considerations

Training of federal officials is critical to a consistent understanding and implementation of the duty to consult and, where appropriate, accommodate. It should:

• increase awareness and understanding of what the duty to consult, and accommodate entails;
• situate the duty to consult and accommodate in the larger context of the relationship between the Crown and Aboriginal peoples, including how the duty relates to other reasons to engage with Aboriginal groups;
• promote an understanding of the roles and responsibilities of the entities involved in the consultation process such as the Crown, Aboriginal groups and third parties;
• allow officials to understand how the duty to consult may apply in the context of their departmental or agency mandates and activities and how they can fulfill it;
• identify the specific implications of developments in case law, consultation policies and practices and the public environment for their departments and agencies and for the Crown as a whole;
• explain where officials can obtain information and practical tools that will support their consultation and accommodation activities;
• provide examples of best practices and opportunities for federal officials to share their experiences of implementing the duty to consult and accommodate;
• promote the development and efficient implementation of mechanisms for interdepartmental and intergovernmental coordination and collaboration; and,
• provide a basis for the development of common consultation approaches and practices within federal departments and agencies and across government.

Training on consultation and accommodation continues to be offered by the Consultation and Accommodation Unit of AANDC in conjunction with the Department of Justice. Federal officials or their managers seeking more information on training or wishing to register for the training sessions may contact: consultation-sessions@aandc-aadnc.gc.ca.

Various departments and agencies have also developed department and agency specific training on consultation and accommodation. For example, the Canadian Environmental Assessment Agency offers training on the integration of Aboriginal consultation into the environmental assessment process.

4) Engaging Justice counsel in the consultation and accommodation process

The Department of Justice is not responsible for conducting consultations or collecting the appropriate factual information regarding potential or established Aboriginal or Treaty rights and potential adverse impacts of an activity. However, the duty to consult is a legal obligation and raises a number of legal issues. Therefore, it is important to work closely with Justice when assessing if and how consultation may need to be incorporated into departmental or agency activities and approaches for identifying and addressing this duty.

In addition there will be situations where departments and agencies will need to engage counsel to assist in reviewing or advising on how best to do the various assessments discussed in Part C of these Guidelines. Justice provides an important advisory role to departments and agencies on the legal aspects of consultation policy choices, especially as it relates to consistency in legal advice across government and as the case law in this area continues to develop.

As departments and agencies become more familiar with the consultation requirements associated with their operations and build Aboriginal consultation and accommodation into their operations through these Guidelines as well as other policies and procedures, the need for legal advice on routine matters may decrease.

Remember:

• When identifying consultation requirements related to general departmental and agency activities or other factors that may influence consultation requirements, managers should seek their counsel's assistance. By keeping Justice informed at the outset about your approach to consultation and the nature of departmental activities, you may reduce the need for your officials to seek guidance from Justice late in the process or for every consultation process. It is also important to work with them to establish and maintain good record-keeping processes.
• Developing standard departmental and agency consultation approaches will reduce the need for advice on a case-by-case basis.
• Make sure that your officials gather all relevant information about their anticipated activities and related assessments as to how these activities may adversely impact potential or established Aboriginal or Treaty rights and related interests. Counsel will be available to review such assessments and provide advice based on the factual information provided.
• When your officials gather information and do their initial assessment of a situation, make sure they identify the legal issues and questions that may need to be answered. Not everything is a legal question. Your department could also benefit from prioritizing questions needing legal clarification on various files and from relevant departments and agencies working on a common consultation file, thereby streamlining requests for legal advice.
• In most instances, depending on the information gathered and the initial assessment made, departmental officials will be able to determine whether a duty is triggered and consultation is required. Identifying, in advance, which departmental activities may trigger a duty to consult will help officials more efficiently make case-specific initial assessments. As this question is a question of law, it will be assessed on a standard of correctness should this assessment be reviewed by a court.
• The information gathered by your officials from relevant sources such as others in the federal government, provincial and territorial governments, affected Aboriginal groups will allow them to 1) identify if their activities may adversely impact any potential or established Aboriginal or Treaty rights; 2) assess the severity of the potential adverse impact and the nature and/or strength of claims; 3) determine the appropriate approach and scope of consultation required; and 4) develop a reasonable approach to consultation. Counsel could assist in ensuring that a statement of a government's intentions and planned undertakings is reasonable and appropriate from a legal perspective.
• Officials will need to seek counsel's advice to answer specific legal questions such as how to address title and exclusive use claims, treaty interpretation, sufficiency of Crown responsiveness, gaps in regulatory or environmental assessment processes, linkages to litigation or negotiations files and other novel legal questions.
• Departments need to do a preliminary assessment of a claim and determine whether groups in the area have raised any concerns regarding the activity or notified the Crown that any activities in a given territory require consultation. Justice can assist in the determination of whether that Crown or third party activity requires consultation and assist in addressing new or novel claims that raise new legal or policy issues that may arise with new kinds of proposed activities or in the course of consultation processes.
• Assess whether a more detailed strength of claim analysis from Justice or other appropriate experts or other key legal analysis are warranted in the circumstances and plan accordingly (baseline information to provide to Justice, delay to obtain analysis, costs, etc.).
• Justice does not make decisions on how departments and agencies should carry out their mandates and activities. Legal advice will complement the broader departmental or agency assessments and decision-making processes which will include good governance and other policy considerations.
• Departments and agencies should keep their counsel informed of their adverse impact assessments for their various activities. As well, departments and agencies can seek Justice advice on their consultation approaches and plans, consultation records, consultation adequacy assessments and accommodation measures that are being considered.
• Where appropriate, discuss document disclosure and the creation and maintenance of a record of the consultation with your counsel.
• Where appropriate, seek counsel's advice when assessing the implementation of an activity and determining whether adjustments are required.

Step 1: Describe and "map out" the proposed Crown conduct

The first step involves describing the contemplated Crown conduct such as a Crown activity or an approval of a third party activity and determining which department or agency is responsible for the conduct. In their departmental or agency consultation and accommodation policy approaches or assessments, departments and agencies should have already identified activities, policies, programs or strategic, higher level decisions that may give rise to a duty to consult (See Part B).

Departments and agencies should identify other federal departments and agencies and other orders of government that may be involved in the activity, including the decisions they are responsible for making and any regulatory, statutory and other program timelines that may apply. Where multiple departments and agencies are involved, a lead department must be identified and the contact information communicated to the relevant departments and agencies and to Justice.

Some questions to consider at this step include:

• What is the nature of the proposed Crown conduct? For example a) Crown activity such as the construction of a building, the creation of a park, the disposal of Crown land; b) Crown authorization of a third party project, issuance of a permit; c) other Crown activity that enables the project to proceed such as funding; d) strategic higher level decisions such as structural or organizational changes that reduce the Crown's oversight and decision-making ability.
• What is the purpose of the initiative?
• What are the details of the project? What is the project's geographic scope? Identify all of its components. Is there more information that is needed to fully understand the project?
• Where the proponent is a third party, has it provided a detailed project description?
• What are the key decisions to be made and related timelines?
• Are there any maps of the project site and surrounding areas?
• What other departments and agencies and other orders of government, corporation(s), or authorities are involved? Who is responsible for authorizing the project or carrying it out?
• Have Aboriginal groups in the area raised concerns about the proposed activity or any other activities (in the past /present)?

Step 2: Identify potential adverse impacts of Crown conduct

Officials must anticipate the potential adverse impacts of the proposed activity. The nature and severity of adverse impacts depends on a variety of factors including: the scope and size of the activity, its environmental effects, and whether the impact is permanent or temporary.

Officials must determine whether the current Crown conduct in question may have an adverse impact on potential or established Aboriginal or Treaty rights. Where departments and agencies are responsible for approving third-party activity, a detailed understanding of the nature and scope of that activity will assist Crown officials to anticipate its potential adverse impacts.

Where adverse impacts are uncertain, it is important to identify those groups whose potential or established Aboriginal or Treaty rights may be impacted. Early engagement with them regarding the proposed activity will enable them to articulate any concerns they may have about the activity. This provides officials with time to adequately assess potential adverse impacts, and identify measures to avoid or mitigate such impacts (Guiding Principle and Directive #3).

Questions and issues for consideration include:

• What is the likely or potential impact of the activity on the land, water and resources? If there are any impacts, what changes to the current condition or use of lands, water or resources are likely to occur as a result of the activity? Are these changes significant?
• Are departmental or agency officials aware of any communication from groups which are raising concerns about the particular activity or similar activities in the area?
• Have any groups notified Canada of any concerns about the proposed activity and suggested any remedial measures that may accommodate the adverse impacts on their rights? Discussing accommodation options with the relevant decision-makers as early as possible in the consultation process will allow federal officials to discuss them appropriately with Aboriginal groups later in the process.
• Does the activity involve lands or resources that are currently the subject of treaty negotiations or are part of existing comprehensive land claim agreements or self-government agreements?
• Are the potential adverse impacts you've identified likely to be of a temporary or permanent nature?
• Have any environmental or other assessments of the proposed activity been carried out? Have any environmental or other assessments been undertaken for similar activities in the vicinity of the proposed activity? If so, what adverse impacts on rights are revealed, if any, by these assessments?
• Are there any other activities occurring in the same area? Is this activity likely to have any cumulative effects in combination with other activities in the same or surrounding area?

In the design or planning stages of contemplated Crown conduct, in the federal environmental assessment process and throughout the consultation process, managers and officials need to identify measures that could be implemented to avoid or mitigate potential adverse impacts of the project on potential or established Aboriginal or Treaty rights and related interests.

The Courts have emphasized the need for flexibility and responsiveness; for an ability and willingness to adjust the activity in question; to provide options for addressing the interests and concerns raised in the course of consultations; and to do so in good faith. It is also important to be clear and explain the limits to what changes can be made to the proposed activity. In the end, the Crown must demonstrate that it sought to reconcile Aboriginal concerns with other societal interests and that its consultation process was carried out with a view to reconciliation.

Step 3: Identify which Aboriginal groups are in the area of the proposed Crown conduct and ascertain their respective potential or established Aboriginal or Treaty rights and related interests

To assess whether the proposed Crown conduct will have any potential adverse impacts on potential or established Aboriginal or Treaty rights in the area(s), officials must gather information about those specific rights. These may include the right to hunt, fish, trap, gather and trade and may either be established by a court or in a Treaty, or may be asserted by an Aboriginal group, for example, in litigation or for the purpose of Treaty negotiations.

Where Aboriginal rights are asserted, the Crown must make a preliminary assessment as to whether there is a credible basis for such claims and compare their assessment with the information gathered through consultation with Aboriginal groups. In the event that the proposed activity may have adverse impacts on the rights of Aboriginal groups living in the area, learn more about the potential or established Aboriginal or Treaty rights in question such as: what are their traditional practices; when and where were these practices historically carried out; are these practices still carried out today; where, by what means, and at what time of the year?

Departments and agencies are encouraged to obtain and to share, internally and with other federal departments and agencies, information about the potential and established rights of Aboriginal groups in various regions of the country. The exchange of regional information will help officials to anticipate potential adverse impacts on rights, and plan proposed federal activity in such a way as to avoid or mitigate those impacts.

Information about potential or established Aboriginal or Treaty rights across the country will also help officials to design and tailor their consultation approach and could support broader departmental or agency priorities to establish and maintain long-term working relationships with First Nation, Métis and Inuit groups.

Keep in mind that even if only one department or agency is aware of an asserted right, the federal Crown as a whole (i.e. every department and agency) is deemed to have knowledge of it. The Crown and its officials are also deemed to know about established Aboriginal and Treaty rights.

Managers must ensure officials can obtain relevant information on potential or established Aboriginal or Treaty rights and related interests, which includes having access to the Aboriginal and Treaty Rights Information System and the Consultation Information Service at AANDC.

Step 4: Make an initial determination as to whether there is a duty to consult

Next, an initial assessment of the information gathered in Steps 1, 2 and 3 must be undertaken to determine whether or not there is a common law duty to consult. This information will also lay the groundwork for determining, in Step 5, the extent of the duty and, in Step 6, an appropriate consultation process.

Three factors are required to trigger the common law duty to consult:

1. There is a proposed Crown conduct;
2. The proposed Crown conduct could potentially have an adverse impact on potential or established Aboriginal or Treaty rights; and
3. There are potential or established Aboriginal or Treaty rights in the area.

For a duty to consult to exist, all three factors must be present.

The threshold to determine if a duty is triggered is low. The objective of the duty is to ascertain if conduct that is being contemplated by the Crown may adversely impact potential or established Aboriginal or Treaty rights before any adverse impacts are caused. To do so will require knowledge of the rights that may be affected by departmental or agency specific activities and a process for discussing any potential concerns early in the planning phases and decision making process.

Departments and agencies can seek Justice's advice when determining whether such a duty exists. For good governance and other policy reasons, your department or agency may decide to consult regardless of whether there is a duty, and this approach should be expressed to the Aboriginal groups being consulted.

Step 5: Assess the scope of the duty to consult and, where appropriate, accommodate

The scope of the consultation and any appropriate accommodation will be informed by the strength of the claim and the severity of adverse impacts on potential or established Aboriginal or Treaty rights. A number of factors should be considered.

Where rights have been established (e.g. in a Treaty or where a court has found an Aboriginal right), a strength of claim assessment is not usually necessary and a more extensive consultation process is generally required.

Where potential rights are claimed, the scope of consultation will need to be proportionate to the seriousness of the potential adverse impact(s) of the proposed Crown conduct and the strength of the potential Aboriginal right(s) claimed (See Figures 1 and 2 below).

Determine the level of seriousness of the potential adverse impact on the right(s), as depicted in Figure 1 below, keeping in mind that re-assessment may be required as the consultation process proceeds and new information comes to light.

Based on experience, officials should be able to anticipate the potential adverse impacts of the Crown conduct in which their departments and agencies typically engage (See Part B). The nature and seriousness of potential adverse impacts of a proposed activity will become more apparent to officials as information from Aboriginal groups is gathered as part of an on-going relationship and information sharing, or during a consultation process.

Strength of claim assessment is an historical and anthropological analysis of the facts of a particular claim asserted by an Aboriginal group in the area of the proposed activity. In conducting the assessment, federal officials should gather the following information:

• What are the nature and scope of these asserted rights?
• Has the Aboriginal group(s) continually occupied the area?
• Does the group still occupy the area? If the Aboriginal group does not still occupy the area, at what period of time did they occupy it?
• What were their traditional practices historically and what are their practices today?
• Is the Aboriginal group alleging that the claimed rights were exercised prior to European contact (or for the Métis, prior to effective control)? Do they continue to exercise these rights today in a traditional or modernized form?

Justice can advise managers and their officials as to when to seek legal advice in the development of strength of claim analysis.

Documents that may alert the Crown to the existence of a claim or contain historical information in support of a claim include: protective writs and other court actions filed by Aboriginal groups; public statements made by Aboriginal groups or their letters to the Crown about their potential or established Aboriginal or Treaty rights; ethno-historical research and reports or similar research submitted by Aboriginal groups for the purposes of a claims negotiation process; traditional knowledge and use studies prepared by Aboriginal groups for an environmental assessment process; or materials prepared by Aboriginal groups for the purposes of litigation. Confidentiality issues related to the above-noted sources of information may need to be addressed.

Other factors may influence the Crown's decision to consult with an Aboriginal group such as participation of the group in a comprehensive or specific claims negotiation process.

When the Crown is dealing with an Aboriginal group with a modern land claim treaty, the first step is to look at its provisions and try to determine the parties' respective obligations, and whether there is some form of consultation provided for in the treaty itself. It is important to be aware that, while consultation may be shaped by agreement of the parties in a treaty, the Crown cannot contract out of its duty of honourable dealing with Aboriginal people – it is a doctrine that applies independently of the treaty itself.

In some cases the treaty itself will set out the elements the parties regarded as an appropriate level of consultation (where the treaty requires consultation) including proper notice of a matter to be decided in sufficient form and detail to allow that party to prepare its view on the matter; a reasonable period of time in which the party to be consulted, and an opportunity to present such views to the party obliged to consult; and full and fair consideration by the party obliged to consult of any views presented.

Once it has been established that the Crown has a duty to consult, departments and agencies involved in the activity need to work together to assess the scope of that duty. The initial assessment of the scope of consultation may change as the consultation unfolds and more information comes to light about the potential adverse impacts of the proposed activity on the community's Aboriginal or Treaty rights.

Departments and agencies must ensure that assessments of the scope of the duty are well documented. Managers can support officials to assess the scope of the duty to consult by ensuring they have access to previous assessments of similar activities in the vicinity. However, it is important to remember that Crown consultation, including strength of claim analysis, is not a rights determination process designed to establish the rights of an Aboriginal group.

The design of the consultation process should reflect the assessment and any changes made to it (See Figure 3 below).

Step 6: Design the form and content of the consultation process

The Crown's assessment of the scope of the duty to consult, and where appropriate, accommodate together with departmental and agency approaches to consultation (See Part B) will guide the development of a consultation process. As the consultation process unfolds, and new information becomes available, its form and content may also evolve to reflect resulting changes to the scope of consultation. The consultation process must therefore be flexible. When designing a consultation process, officials should become aware of existing interactions, processes and dealings between the relevant Aboriginal groups and other federal departments and agencies that may support an effective consultation process.

It is important to establish goals and objectives and develop evaluation questions that will assist federal officials in determining the effectiveness of actions and decisions made at key stages of the process. Further, as officials prepare to implement their activity, they should focus the consultation process on avoiding or minimizing adverse impacts of the Crown conduct on the potential or established Aboriginal or Treaty rights and addressing any related interests, to the greatest extent possible.

Guiding Principle and Directive #4 sums up the key elements of a meaningful consultation process and reflects what Aboriginal groups across the country have stated during the preparatory discussions (2005–06), the engagement process under Canada's Action Plan (2008–10) and in other forums on consultation and accommodation as follows:

• A Crown approach that is forthcoming, flexible and responsive;
• Inclusive processes to manage issues, decision-making and ensure accountability;
• Early consultation and policy-based discussions with communities on accommodation with the objective of avoiding or minimizing adverse impacts;
• Pro-active solicitation of Aboriginal involvement and active listening to their concerns;
• Real opportunities to inform and influence decisions before they are made;
• Assistance to support Aboriginal groups' meaningful participation in a consultation process;
• Time lines for information-sharing and responses that are appropriate and adapted to the specific circumstance;
• Serious consideration of feedback during the consultation process and prior to any decisions being final;
• Clear and direct responses on how concerns have been addressed or why they cannot be addressed;
• Better coordination, cooperation and collaboration between Crown and industry with respect to Aboriginal consultations;
• Consideration of accommodation as part of a meaningful consultation process. When looking at accommodation options, seriously consider Aboriginal perspectives, concerns and options for addressing impacts on potential or established Aboriginal or Treaty rights and related interests;
• Sustainable economic development balanced by an awareness of cumulative impacts and environmental stewardship;
• Openness to altering the original proposal and if necessary, not going forward at all with the project or decision.

Step 7: Ensure that a records management and filing system is in place

Federal departments and agencies should approach Aboriginal consultation with the awareness that they may be required to (1) access their own or other Crown records during the consultation process and (2) demonstrate the completeness and integrity of the process at a later date. To this end, federal departments and agencies that do not have a record management system for Aboriginal-Crown consultations should develop and maintain a consistent approach and format to record keeping for each step in the consultation and accommodation process.

An efficient record keeping system should ensure that the information is accessible, searchable, retrievable and reliable. It should also enable the sharing of documents between federal departments and agencies, and take into account security classification levels and privacy issues. Where multiple departments and agencies are involved in a consultation process, a centralized record keeping system is essential to maintain a complete record of consultations. For example, the Major Projects Management Office and the Canadian Environmental Assessment Agency have created a centralized Crown consultation records management system for federal departments and agencies working on Aboriginal-Crown consultations on major resource projects.

Examples of information that qualifies as a Crown record may include:

• background/technical information about the proposed project;
• any relevant information about the Aboriginal group(s) which might be affected by the proposed activity;
• a consultation plan;
• correspondence and meeting notes between federal departments and agencies and the Aboriginal group(s) in relation to the proposed activity;
• correspondence detailing each contact made with Aboriginal group(s) in relation to the proposed activity (e.g. letters, phone calls);
• letters of opinion from Aboriginal groups related to the proposed project or Crown conduct;
• an adverse impact assessment of the proposed activity;
• a strength of claim analysis on asserted Aboriginal rights;
• legal advice sought at any point during the consultation process;
• notices of consultation sessions or funding issuance (e.g. participant funding program);
• issues management tracking table.

A consultation record typically includes:

• date and time of correspondence or meeting;
• where the meeting took place and who attended;
• information shared with Aboriginal group(s) regarding the proposed activity and related consultation process;
• feedback received from Aboriginal groups;
• departmental or agency responses to the concerns and information requests made by Aboriginal group(s) related to the consultation process;
• rationale for key decisions taken in relation to the activity.

All correspondence with the Aboriginal groups (e.g. letters, e-mail messages, notes on telephone calls, notes from each meeting with the Aboriginal group) should be recorded and filed in their records management system.

It is also recommended practice for federal officials to indicate who created the record and who performed the activity recorded.

Step 1: Implement the consultation process

• Notify the Aboriginal group(s) of the proposed activity, provide a government contact for any questions or concerns, and, where appropriate, offer to meet to discuss the proposed activity and any concerns they may have about it;
• In a timely manner, provide Aboriginal groups with clear and relevant information relating to the proposed activity and any adverse impacts that may be anticipated, to enable them to provide meaningful feedback;
• To ensure that Aboriginal groups are adequately notified and able to meet timelines, federal departments and agencies should send information to them by a variety of means including registered mail, email and fax. Using registered mail ensures that recipients have an original copy on file; however, this method of correspondence can be slow. E-mails and faxes ensure timely receipt of documents. Follow-up phone calls are recommended. Timely communication facilitates an open and respectful dialogue between the Aboriginal community and the Crown;
• Confirm who is authorized to represent Aboriginal group(s) in relation to their Aboriginal or Treaty Rights and related interests;
• Identify and determine the nature of any overlapping claims that may exist in the area of the activity;
• Provide the Aboriginal group(s) with enough time to assess any adverse impacts of the proposed activity on their rights and to prepare their views on the matter. Officials should follow-up to discuss concerns, as necessary;
• Ensure that the Crown responds in a coordinated and timely fashion to communication received from Aboriginal groups. To facilitate these efforts, managers may wish to establish service standards or letter templates;
• Consider the concerns of Aboriginal groups, and respond in a meaningful way by ensuring that the Crown's responses consider and address Aboriginal representations, questions and concerns;
• Throughout the consultation process, consider ways and means to avoid or mitigate potential adverse impacts of the activity on potential or established Aboriginal or Treaty rights and related interests;
• Depending on the nature of the concerns, ensure that the third party proponent is involved in the discussion of measures to prevent or reduce any potential adverse impacts of the project. A proponent is typically in the best position to alter the project to avoid or mitigate adverse impacts (e.g., placement of docks, routing of pipelines, alignment of roads, etc.);
• Review periodically, throughout the consultation process, the extent to which environmental assessments or regulatory processes, as they are implemented, can be relied upon and how the information generated in those processes can be used to fulfill the Crown's duty in whole or in part;
• Review periodically whether the Crown has demonstrated to the board or tribunal, where appropriate, that adequate consultation has occurred;
• Ensure that throughout the consultation process, all relevant information is shared with government departments and agencies involved in the consultation. To achieve effectiveness, managers are encouraged to periodically review coordination and information sharing practices;
• Follow agreed upon dispute resolution mechanisms to resolve conflicts as they arise, and to avoid litigation related to the consultation and accommodation process.

Step 2: Document, catalogue and store all Crown consultation meeting records and other correspondence

Good practices to consider in relation to record keeping include:

• update records regularly;
• provide the same level of information detail consistently and as needed to relevant departments and agencies involved in Crown consultations;
• share information in a timely way with departments and agencies;
• ensure that the records are filed according to a set standard in a records management system that is accessible by all departments and agencies involved in the consultation process;
• ensure that all records are easily accessible and filed using an appropriate security classification; and,
• preserve corporate memory of a consultation file.

Step 3: Develop and maintain an issues management tracking table

An issues management table should be created and should include a summary of:

• Aboriginal concerns about potential adverse impacts of an activity on potential or established Aboriginal or Treaty rights, as conveyed to government decision makers;
• Crown's efforts to address concerns raised by Aboriginal groups about potential adverse impacts of the activity on potential or established Aboriginal or Treaty rights;
• any communication sent to Aboriginal groups informing them of steps taken to address their concerns;
• any outstanding issues remaining between the Crown and Aboriginal groups with information about why these issues have not been resolved and some of the challenges encountered in relation to these issues. If the intention is to address these issues at a later date, provide a rationale for the timing and a plan for implementation and follow-up.

Step 4: Adjust the consultation and accommodation process, as necessary

The consultation process should be responsive and flexible. Officials need to adjust the process as new information about the strength of claim or the severity of adverse impacts comes to light, or if a new Aboriginal group, with a credible claim, alleges that their potential or established Aboriginal or Treaty rights may be impacted by the project. If the processes being relied on by the Crown will not allow it to fulfill its consultation obligations, additional steps must be taken.

Step 1: Gather and analyze information supporting the basis for accommodation

The following factors are relevant when federal departments and agencies consider whether accommodation is appropriate in the circumstances. This information will be gathered during the "Pre-consultation Analysis and Planning" and the ‘Crown Consultation Process' phases of the process (See Phases 1 and 2). Some of this information will be contained in the issues management tracking table.

• What potential or established Aboriginal or Treaty rights stand to be adversely impacted by the project?
• In the case of potential Aboriginal rights, what is the strength of the claim?
• What is the degree and severity of the adverse impacts on the potential or established Aboriginal or Treaty rights and related interests?

Step 2: Identify possible accommodation measures and options

After determining that accommodation is appropriate in the circumstances, the next step is to assess the range of possible accommodation measures and discuss these measures with Aboriginal groups. In identifying possible accommodation measures, officials may take into account:

• options identified by Aboriginal groups or the proponents to eliminate or reduce the adverse impacts of the proposed project (e.g. changes to the design or approach to the project);
• the extent to which any proposed accommodation measures may reduce the adverse impacts of the proposed activity on potential or established Aboriginal or Treaty rights;
• whether the adverse impacts of the proposed activity on potential or established Aboriginal or Treaty rights can be eliminated or reduced, and if not, whether some sort of compensation may be appropriate;
• the cost to the Crown of each possible accommodation measure and the existing sources of funds (e.g. Treasury Board submissions, existing authorities, shared cost with other federal departments and agencies, other levels of government or industry);
• whether there are consultation protocols with Aboriginal groups that serve as a basis to discuss, and where appropriate, to implement accommodation measures;
• whether there are any existing or new financial authorities that are necessary to implement accommodation measures?
• whether the mandates of federal departments and agencies enable them to proceed with selected accommodation options?
• what other departments and agencies can offer in terms of accommodation, having regard to their mandates, financial authorities and legislation. For example, Human Resources and Social Development Canada – job training; Public Works Government Services Canada – sale or purchase of lands; Parks Canada – commemoration of Aboriginal sacred sites; such measures may meet the concerns and interests without requiring new resources.

This assessment allows the Crown to identify accommodation options for discussion with rights holders. It is essential that federal departments and agencies have the appropriate internal approvals in place. It is also important that proposed accommodation measures are approved by senior management with decision-making and financial authority. Federal officials must ensure that internal approvals are obtained prior to presenting accommodation options to Aboriginal groups.

The mandates and processes of boards, tribunals or commissions and other regulatory, statutory or contractual processes that may be relied on by the Crown may not be sufficient to address certain accommodation measures or options. Therefore, the Crown may need to supplement these processes.

A clear distinction is required between accommodation of potential or established Aboriginal or Treaty Rights by avoiding or mitigating any adverse impacts on those rights and other socio-economic measures that are offered to address the Aboriginal communities' interests in relation to the activity. These latter activities are business initiatives that are linked to the project or other corporate or governmental programs that support communities. They do not always serve as accommodation measures necessary for the Crown to fulfill its duty.

Step 3: Select appropriate accommodation options

Informed by its discussions with Aboriginal groups during the consultation process, the Crown must select appropriate accommodation option(s). Generally, the most appropriate measure(s) are those which are most effective in eliminating or reducing adverse impacts on potential or established Aboriginal or Treaty rights while taking into account broader societal interests.

The duty to consult does not include an obligation on the Crown to agree with Aboriginal groups on how the concerns raised during consultations will be resolved.

Selecting accommodation measures requires cooperation amongst federal departments and agencies and effective inter-departmental mechanisms for collaboration.

Step 4: Communicate and document selected accommodation measures

It is important to document and communicate to all parties, in writing, the accommodation measures. The following factors may assist departments and agencies in communicating accommodation decisions:

• A description of the steps in the consultation process that led to the accommodation decision;
• Evidence that the selected options are supported by information provided to the Crown during the consultation process;
• Evidence that the consultation process was meaningful and reasonable and that the Crown acted in good faith;
• The reasons for selecting the chosen accommodation measure(s);
• How Aboriginal concerns and suggestions for accommodation measures were addressed or the reasons why the accommodation options suggested by Aboriginal groups were not selected;
• Roles and responsibilities of all parties involved in implementing the accommodation measures (e.g. Crown, rights holders, third parties); and,
• How to communicate the selected accommodation measures to all parties. Such communication should be coordinated if more than one federal department or agency or the provincial or territorial government is involved in the consultation process. In the issues management tracking table, the federal lead department or agency should maintain a list of the various accommodation measures proposed by all participants in the consultation process.

Step 1: Communicate and implement the decision(s)

In some circumstances, departments and agencies will find it helpful to develop, in collaboration with the Aboriginal groups and other parties, if appropriate, an implementation plan that sets out the steps necessary to put the accommodation measures in place, and to guide and track the Crown's monitoring and follow-up activities. Departments and agencies can look to their departmental or agency approaches to consultation (See Part B) and the issues management tracking table for guidance in the development of an implementation plan.

Step 2: Monitor and follow-up

Departments and agencies need to coordinate their roles in carrying out monitoring or other follow-up activities. A coordinated effort will help them assess whether accommodation measures are effective in eliminating or mitigating the adverse impacts of the project.

If monitoring and follow-up activities reveal that some accommodation measures are ineffective in mitigating the adverse impacts, the Crown needs to work collaboratively with Aboriginal groups, the proponent and other parties to find appropriate accommodation measures, and monitor the effectiveness of the new measures. The Crown discharges its duty to consult, and, where appropriate, accommodate, and strengthens its working relationship with Aboriginal groups when it puts in place effective accommodation measures. (Refer to Guiding Principle and Directive #8).

This could be facilitated by an implementation plan to guide and track the Crown's monitoring and follow-up activities. The plan may include:

• designation of a federal lead for the reporting and issues management tracking process, and for on-going communication with Aboriginal groups and proponent, as necessary. Where more than one department or agency is involved, the lead is responsible for ensuring that appropriate action is taken;
• requirements and measures that ensure that adverse impacts on rights continue to be addressed during the life cycle of the activity; and
• existing or newly developed tracking and reporting processes for each of the accommodation measures implemented, federal and regulatory activities, management and disposal of Crown land, financial requirements.

Step 3: Evaluate the consultation process

Following the implementation of the selected accommodation measures, departments and agencies should evaluate the results of their consultation and accommodation activities. A Crown consultation record, if well developed and consistently maintained, will facilitate the analysis of whether or not Aboriginal concerns about any adverse impacts on potential or established Aboriginal or Treaty rights and related interests have been adequately addressed.

Evaluating a process as it proceeds enables officials to verify the effectiveness of actions and decisions taken along the way and to correct them in a timely fashion. Therefore, undertaking an evaluation of a consultation and accommodation process at key stages will allow the Crown to ensure that it continues to act in accordance with the goals and objectives or to adjust them as new developments occur or new information becomes available. The Audit and Evaluation Unit Staff of the departments and agencies involved can assist in developing a useful evaluation process that can be shared to improve various aspects of future consultations.

When developing a process for evaluating the consultation and accommodation process, departments and agencies should take into consideration the:

• design of evaluation criteria at the outset so the goals, objectives and outcomes are clear and can be tracked over a reasonable period of time;
• advice and guidance from the Audit and Evaluation units of the departments and agencies involved on how to effectively evaluate a consultation and accommodation process; and
• potential involvement of Aboriginal groups in the development of the evaluation criteria.

Some evaluation questions to be considered:

• What Crown processes were used? What worked, what didn't?
• Were all the relevant parties properly identified and appropriately involved?
• Were roles and responsibilities in the process appropriate and understood?
• Did the consultation plan and process reflect the respective objectives and interests of the parties?
• Was the consultation process reasonable, meaningful, flexible and achievable?
• Did the consultation process reflect the nature, scope and complexity of the intended project, activity or decision?
• Were all parties clear on process objectives and outcomes?
• On what proponent activities did the Crown rely? To what extent did they assist in fulfilling the Crown's consultation obligations?
• Was the consultation process well documented in an official record and is the information generated during the process easily accessible?
• Were decisions justified and clearly communicated to the appropriate parties?
• Was legal advice sought appropriately?

The evaluation should also include information about whether or not the Crown acted in a manner consistent with the following standards, principles and relevant legal tests:

1. Has consultation been meaningful? Is the depth of consultation adequate given the circumstances? Has it been carried out in a timely and reasonable manner? Has the Crown been responsive to the concerns raised?
2. Have any concerns raised by Aboriginal groups not been addressed? Have any concerns been overlooked?
3. Is the recorded response to a concern meaningful? Is there any sense of lack of clarity or avoidance in the response? Has the Aboriginal group raised any concerns about the response?
4. Are there accommodation measures that should be implemented now? Can the consultation to date be deemed adequate, even if accommodation has not been undertaken or has been put off to a later stage of the project?
5. In the event of new information, was the scope of the consultations reassessed? Specifically, does the new information affect the strength of the claim or the significance of the adverse impact?

Evaluation questions on the procedural aspects of a consultation process to determine if the Crown has conducted a thorough and reasonable consultation process could include:

1. Has each Aboriginal group's concern been consistently considered and followed-up on?
2. Has each response been communicated to the Aboriginal group(s)?
3. Has the Crown tried to solicit Aboriginal views and concerns?
4. Has there been a good flow of information? Have all Aboriginal groups been appropriately informed through such means as information packages?
5. Have there been face-to-face meetings and, if not, were they necessary? Did groups request such meetings? If so, what was the response?
6. Is there a good correspondence record? For example, copies of correspondence, phone calls and face-to-face meetings?
7. Is there a good consultation record?
8. Was a particular board or tribunal relied on for the consultation process? Was a provincial or territorial process relied on? Was it sufficient to address the Aboriginal groups' concerns?
9. Is a third party proponent involved? Who was it and what was their role?
10. What concerns were raised and how has the third party proponent responded? What was the follow-up and monitoring process used?
11. Were the affected Aboriginal groups able to participate in the consultation and accommodation process? How were issues of capacity addressed? Was it through monetary or non monetary means or both? Were funding authorities in place? Was funding available in the department or agency to support capacity? Is a funding agreement in place? Were other departments and agencies or governments contributing to support capacity? Were final and financial reports provided in relation to transfer payments? Have transfer payments contributed to consultation objectives? Have recommendations been made for future consultations?
12. Did your department or agency lead the consultation? If so, what follow-up and monitoring processes were implemented? If not, was a lead department or agency identified?

1. Duty to Consult

2. Legal Tests for Assessing Interference with and Existence of Aboriginal and Treaty Rights