CROWN’S DUTY TO CONSULT AND ACCOMMODATE INDIGENOUS PEOPLE In Canada, the federal, provincial and territorial governments (i.e., the Crown) have a legal duty to consult with First Nations, Inuit and Métis (collectively, Indigenous) communities when the Crown has knowledge (real or constructive) of established or asserted Indigenous or treaty rights (e.g., traditional uses of land, such as hunting, fishing, trapping and the harvesting and gathering of plants; interests in culturally relevant archaeological sites) and contemplates conduct that might adversely affect these rights. Such consultation may, in appropriate circumstances, lead to a duty on the Crown to accommodate Indigenous groups. Accommodation measures vary widely — for example, the modification of a proposed project, enhanced environmental monitoring and mitigation measures, training and employment for Indigenous people and financial contributions to Indigenous communities. The Crown’s duty to consult and accommodate can be triggered by a federal, provincial or territorial approval, licence, permit or any other activity that could potentially adversely affect Indigenous or treaty rights, such as the expansion or initiation of resource extraction operations. As a result, these governments have generally instituted Crown consultation processes for proposed projects within their jurisdictions. For projects involving both federal and provincial/territorial governments, the Crown generally tries to coordinate consultation efforts to minimize duplication. The Crown will also try to coordinate its consultation process with any existing consultation or participation procedures required by land claim or similar self-government agreements.
The scope and content of the Crown’s duty to consult and accommodate vary widely, are highly fact-specific and are proportionate to the strength of the asserted Indigenous or treaty right and the seriousness of the potentially adverse impact upon it. In other words, the consultation activities to be undertaken and how they are approached will vary widely from project to project. For example, if there is little impact on an asserted or established Indigenous or treaty right, the level of consultation required may simply be a duty to give notice, disclose and share information and discuss important decisions to be taken in relation to the proposed project. When the adverse impact on Indigenous rights is potentially greater, the Crown’s consultation requirements would be more substantial (e.g., more extensive consultation, mitigation and/or accommodation).
In Canada, federal, provincial and territorial governments contemplating conduct that might adversely affect established or asserted Indigenous or treaty rights have a legal duty to consult with the affected Indigenous communities.
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