Duty to consult and accommodate

In Canada, the duty to consult and accommodate with Aboriginal peoples arises when the Crown contemplates actions or decisions that may affect Aboriginal or Treaty rights.^[1] This duty arises most often in the context of natural resource extraction such as mining, forestry, oil, and gas.

It is very difficult to practically separate the duty to consult and accommodate because consultation may lead to the fulfillment of the duty to accommodate ^[2] and consultation is meaningless if accommodation is excluded from the outset.^[3] As such, the two are intertwined and must be addressed together.

The broad purpose of the duty to consult and accommodate is to advance the objective of reconciliation of pre-existing Aboriginal societies with the assertion of Crown Sovereignty. This duty flows from the honour of the Crown and its fiduciary duty to Indigenous peoples.^[4] The obligation to provide consultation and a decision-making process that is compatible with the honour of the Crown is embedded in Section Thirty-five of the Constitution Act, 1982 and Treaties. In a Treaty context, the duty to consult serves to remedy "a procedural gap" in the Treaty.^[5]

The Supreme Court of Canada has acknowledged that there are gaps in the texts of historical numbered treaties. This means that the oral negotiations surrounding treaty negotiations are necessary to fully understand the rights and obligations to which treaties give rise. For example, the Supreme Court of Canada has stated that obligations arising from historical treaties encompass an oral promise that "the same means of earning a livelihood would continue after the treaty as existed before it." The Court further stated that "a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity. Continuity respects traditional patterns of activity and occupation."^[6] Therefore, orally negotiated historical treaties give rise to rights go beyond the right to hunt, fish and trap to include a right to maintain its traditional and cultural way of life as well as their traditional forms of economic activity.

The Crown constitutes both the Federal and Provincial governments.^[7] Therefore, the level of government contemplating an action or decision has the responsibility to consult and accommodate. Although in many provinces it is industry proponents that consult with Aboriginal rights holders, the ultimate substantive duty to ensure proper consultation and accommodation lies with the Crown; while procedural aspects can be delegated to other levels of government or to industry proponents, the honour of the Crown itself can never be delegated.^[8]