Government of Canada and the duty to consult
The Government of Canada has a duty to consult and, where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. The duty stems from the Honour of the Crown and is derived from section 35 of Canada's Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights.
On this page
About the duty to consult
The Government of Canada's duty to consult with Indigenous groups was affirmed by the Supreme Court of Canada in the following decisions:
The duty to consult is an important part of the federal government's activities, including for regulatory project approvals, licensing and authorization of permits, operational decisions, policy development, negotiations and more. Additionally, the duty to consult may be referenced as part of statutory obligations, provisions in land claim agreements and consultation protocols.
When properly executed, consultation in the context of the legal duty can support reconciliation through relationship building with Indigenous Peoples. Relationship building happens by providing venues to share information and perspectives, support broad-based policy development and create the basis for future work together.
Crown-Indigenous Relations and Northern Affairs Canada and the duty to consult
Government of Canada departments and agencies are responsible for understanding how and when their activities could have an adverse impact on Aboriginal and treaty rights. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) coordinates and advises federal officials on the duty to consult by:
- providing policy direction on consultation practices
- sharing information on Indigenous groups, agreements, claims and more through the Aboriginal and Treaty Rights Information System (ATRIS) and the Consultation Information Service (CIS)
- developing partnerships with Indigenous groups and organizations
- supporting coordination with provinces, territories and industry partners
- delivering training and guidelines to federal officials on the duty to consult
To obtain advice on the duty to consult, please contact the Consultation and Accommodation Unit: indigenous.consultations.autochtones@rcaanc-cirnac.gc.ca
Federal officials and the duty to consult
Since 2008, CIRNAC has supported federal departments and agencies in fulfilling the Government of Canada's duty to consult by providing guidelines, training and other tools.
Training of federal officials
CIRNAC offers interdepartmental training sessions across Canada tailored to meet the needs of particular regions. Trainers also lead and facilitate focused training and workshops with particular departments, agencies, sectors or teams upon request.
Training sessions include information on:
- how to assess consultation requirements
- case law as it relates to the duty to consult
- Aboriginal and treaty rights, and strength of claim and treaty rights assessments
- analysis of Crown (Government of Canada) conduct
- how to identify potential adverse impacts of federal activities
- how to assess the scope of consultation and extent of accommodation required
- consultation agreements
- key elements of meaningful consultation processes
- coordination and reliance on existing process
- accommodation options, measures and approaches
- how to assess adequacy of consultation
Thousands of federal employees from all government departments and agencies across the country have been trained to meaningfully consult and, where appropriate, accommodate Indigenous groups. Each year, new training sessions for officials are organized and implemented across the country to continue this work.
Guidelines
Update:
Starting in 2023-24, the 2023 federal budget provides $11.4 million over 3 years to Crown-Indigenous Relations Northern Affairs Canada to engage with Indigenous communities. Engagement activities will inform the development of new federal guidelines for federal officials to fulfil the Crown's duty to consult Indigenous Peoples and accommodate impacts on their rights. This will support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act and provide more clarity on how the government will proceed to ensure an effective and efficient whole-of-government approach to consultation and accommodation.
For more information, please contact: indigenous.consultations.autochtones@rcaanc-cirnac.gc.ca
Since 2004, national engagement processes on consultation and accommodation with First Nations, Inuit and Métis communities and organizations as well as provinces, territories and industry partners have informed the creation of the Interim Guidelines for Federal Officials to Fulfill the Duty to Consult (2008) and Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011).
Another national engagement process was led by a Ministerial Special Representative in 2015. This process resulted in a report entitled "Building Relationships and Advancing Reconciliation through Meaningful Consultation" which reflected discussions with Indigenous groups, provinces, territories and industry representatives on Canada's current approach to consultation and accommodation with Indigenous groups.
Consultation protocols
CIRNAC coordinates with federal departments and agencies to build, maintain and strengthen relationships with Indigenous Peoples, provinces, territories, industry and the public. To support an effective and efficient whole-of-government approach to consultation and accommodation, CIRNAC is committed to developing relationships with Indigenous Peoples. This approach ensures that Indigenous groups are appropriately consulted when the federal government considers action that may have an adverse effect on potential or established Aboriginal or treaty rights.
The Government of Canada signs consultation protocols with Indigenous groups to create a process to follow when consulting on potential adverse impacts to Aboriginal or treaty rights.
Consultation protocols:
- facilitate engagement
- promote relationship building
- clarify roles and responsibilities between governments and Indigenous communities
Protocols provide a more efficient approach through which governments can consult Indigenous groups. To learn more about consultation protocols, visit Strengthening partnerships: Consultation protocols.
In some instances, government departments and Indigenous Peoples may develop protocols or guidelines to support a specific circumstance such as a project or program.
There are currently consultation protocols in place with a number of Indigenous groups across Canada. Copies of these consultation protocols are publicly available on the Aboriginal and Treaty Rights Information System (ATRIS).
Alberta
- Two protocols with the Dene Tha' First Nation:
- Métis Nation of Alberta: Consultation agreement
British Columbia
New Brunswick
Nova Scotia
Ontario
Prince Edward Island
Quebec
- Abenaki Consultation and Accommodation Protocol
- The Mi'gmaq-Quebec-Canada Interim Tripartite Agreement on Mi'gmaq Consultation and Accommodation (Gaspé region)
- Huron-Wendat Nation Consultation and Accommodation Protocol
- Protocol on Consultation and Accommodation of the Wolastoqiyik Wahsipekuk First Nation
Consultation resource centres
A consultation resource centre is a team within an existing Indigenous organization that supports capacity building for Indigenous communities to respond to requests for consultation. This may include:
- participating in training
- developing best practices
- coordinating research
- information gathering
There are currently a number of resources centres in place with a number of Indigenous groups across Canada.
Alberta
- Métis Settlements General Council (2017)
- Métis Nation of Alberta (2018)
Quebec
- First Nations of Quebec and Labrador Sustainable Development Institute (2016)
Saskatchewan
- Métis Nations-Saskatchewan (2017)
- File Hills Qu'Appelle Tribal Council (2018)
Interdepartmental consultation and accommodation networks
The Government of Canada's consultation and accommodation interdepartmental networks include over 25 federal departments and agencies. Networks in Ottawa-Gatineau and in the regions meet regularly to discuss emerging policy and operational issues, share consultation and accommodation experiences, provide information, and coordinate consultation efforts. The networks have been extremely useful in evaluating ideas and suggestions for government departments and agencies as they encounter new challenges related to the duty to consult.
Memoranda of understanding
CIRNAC assists in developing informal agreements, known as memoranda of understanding (MOUs), between provincial or territorial governments and the Government of Canada. These MOUs are part of an enhanced communication and coordination approach to consultation, which also includes:
- on-going information sharing
- strengthening a community of practice
- discussing key issues for collaboration
MOUs aim to reduce overlapping processes of consultation and accommodation with other jurisdictions and consultation fatigue on the part of Indigenous groups.
These agreements demonstrate mutual commitment to strengthen collaborative efforts and to coordinate information sharing on Indigenous consultation processes.
The commitment of the parties to the MOUs to exchange experiences, ideas, and best practices in the field of Indigenous consultation will foster new approaches and tools to assist in decision-making.