The Duty Consult and Accommodate Primer: Where Do We Begin?
Updated: Mar 31, 2022
Indigenous rights and title, and the duty to consult and accommodate are lofty topics which have steadily evolved since the Royal Proclamation of 1763.
And, even following 1951 amendments to the Indian Act, the opening of the flood gates with respect to recourse for punitive policies and restriction of movement on Indigenous Peoples paved the way for property and right to self-govern review and recourse.
Yet the gridlock of court cases with respect to Indigenous rights didn’t truly begin to move until 1973.
The Calder decision of 1973 (Calder v. Attorney General of British Columbia,) recognized Indigenous title. The Guerin (1984,) Sparrow (1990,) Delgamuukw (1997,) and Haida (2004) court decisions led to increased rights recognition and finally, the Duty to Consult and Accommodate.
But, what does that mean? In short:
· Indigenous rights exist in law, and include title, which is a distinctive right specific to communally held property.
· The extent of Indigenous title and rights is determined by specific statements or truths relating to the Indigenous group as well as its historical relationship to the land which is in question.
· Indigenous rights and title can’t be annexed by legislation as they are protected by the Constitution Act of 1982.
· The government has a duty to consult and potentially accommodate Indigenous interests even in instances where title hasn’t been proven, and where treaty rights may be affected unfavorably.
Both federal and provincial levels of government have a legal obligation to consult with Indigenous People where it contemplates decisions or actions that may adversely impact asserted or established Indigenous or treaty rights.
The duty to consult requirements can vary widely and depend on the circumstances of each project. Factors that can influence the consultation obligations include:
· Nature and scope of the established or asserted Indigenous or treaty right.
· Strength of the claim to an asserted Indigenous or treaty right.
· Potential impact of the proposed conduct on the established or asserted right. (Related: Treaties 101: Understanding Indigenous Treaties in Ontario)
What does consultation involve?
1. Information Components:
· Providing timely and accessible information to the Indigenous community on the proposed project, activity, or decision.
· Obtaining information on any potentially affected rights.
2. Response Components:
· Listening to any concerns raised by the Indigenous community.
· Determining how to address these concerns, including attempting to avoid, minimize, and/or mitigate adverse impacts on Indigenous or treaty rights. (Related: Achieving meaningful engagement with Indigenous Communities)
What is the role of the Indigenous community in the Duty to Consult and Accommodate process?
Meeting the duty to consult requires a two-way flow of information between the Crown (or Third Party) and Indigenous People. The courts have stated that there is an onus on Indigenous communities to make their concerns known, respond to the ministries’ or Third Party’s attempts to address those concerns, and attempt to reach a mutually satisfactory solution.
To avoid feelings of powerlessness, confusion, and frustration in this process, organizations and Indigenous communities alike can develop a desire and protocols for engagement. Although the Duty to Consult and Accommodate is a legal obligation, it does not have to be one of mass uncertainty and disorganization. Long-term, stable, and mutually beneficial relationships can be built to accelerate the speed of business and encourage efficiency by both parties. This also opens more potential for opportunity.
Related: Introduction to Indigenous Engagement
The social and economic benefits, new job opportunities, enhance land use, and increased business development that can be generated from effective processes such as this are enormous.
The Duty to Consult and Accommodate process can be custom-designed to comprehensively meet the needs of an Indigenous community as well as the entities needing to engage them, including critical path, best practices, and continued relationship-building and mutual respect.