Duty to consult and accommodate facts for kids
In Canada, the duty to consult and accommodate is a special rule. It means the government (called the Crown) must talk with Indigenous communities. This happens when the government plans something that might affect their Indigenous or Treaty rights.
This duty often comes up when the government wants to use natural resources. Things like mining, cutting down trees, or drilling for oil and gas.
The duty to consult and the duty to accommodate work together. You can't really separate them. Talking (consulting) helps find ways to make things work (accommodate). If there's no way to make things work, then talking isn't very helpful.
The main goal of this duty is to help bring together Indigenous societies and the Canadian government. It's about respecting Indigenous peoples who were here first. This duty comes from the idea that the Crown must act honourably. It also comes from [[Section Thirty-five of the Constitution Act, 1982|Section 35 of the Constitution Act, 1982]] and Treaties.
The Supreme Court of Canada has said that some old treaties have parts that are not clear. This means that what was said during the treaty talks is important. It helps us understand the full meaning of these agreements. For example, the Court has said that treaties include a promise. This promise is that Indigenous peoples could continue their traditional ways of life. This includes hunting, fishing, trapping, and other economic activities.
The "Crown" means both the federal government and provincial governments. So, whichever government is planning an action must consult and accommodate. Sometimes, companies that want to develop resources do the talking. But the main responsibility to make sure it's done right always belongs to the government.
Contents
When the Duty Starts
The Supreme Court of Canada set out three main things that must be true for the duty to consult to begin. This was in a case called Haida Nation v. British Columbia (Minister of Forests).
Knowing About Rights
First, the government must know about an Indigenous right. This is usually clear with treaties that list rights. But some older treaties are not always clear. There have been many court cases about what rights are included in these treaties.
Government Action on Land
Second, the government must be planning an action or decision. This action must be about land or natural resources. It must be in the traditional territory of an Indigenous group. Traditional territory includes reserve lands and other lands that the group has used for a long time.
Possible Negative Impact
Third, the government's decision must have the chance to negatively affect a Treaty or Constitutional right. Courts look closely at evidence to see if there's a possible negative impact. They are very careful to make sure Indigenous rights are protected. But just guessing that there might be an impact is not enough.
What the Government Must Do
Once the duty to consult begins, the government has certain things it must do. These are the minimum requirements:
- Learn and Share: The government must find out how a project might affect Indigenous rights. Then, it must share this information.
- Give Notice: It must tell Indigenous rights holders about possible negative impacts.
- Ask for Input: It must ask Indigenous rights holders what studies are needed to check for impacts.
- Consult Meaningfully: The government must truly listen to Indigenous peoples' ideas. It needs to have a clear process and be ready to change plans.
- Work Together: It cannot just make decisions on its own.
- Consult at Each Step: The government must talk with Indigenous peoples at every stage of a project. This happens before any decisions are made.
- Talk Directly: It must speak directly with the Indigenous groups who might be affected.
- Act in Good Faith: Both sides must be honest and fair during the talks.
- Listen and Respond: The government must listen to concerns and try to address them.
- Reduce Harm: It must try to lessen any negative impacts on Indigenous rights.
- Be Open to Change: The government must be willing to change plans based on new information.
- Allow for Solutions: It must not say "no" to finding ways to make things work (accommodation).
The government also cannot do certain things during this process:
- It cannot just say "trust us" about information or impacts.
- Consultation cannot just be a chance for Indigenous peoples to complain. It must lead to real solutions.
- It cannot hold back information that could be shared earlier.
- Consultation cannot just focus on small, specific impacts.
- It cannot just follow a process without caring if the results are fair.
- It cannot harm Indigenous land rights so much that future generations lose the benefit of the land.
How Much Consultation is Needed
The amount of consultation and accommodation needed depends on a few things. The two most important are:
- How much negative impact the project might have.
- How strong the Indigenous rights or land claim is.
If an Indigenous group has treaty rights or recognized Indigenous rights, the second point is usually clear.
A negative impact happens when a project makes it harder for Indigenous peoples to use their rights. For example, if a new road makes it harder to hunt in a certain area. Figuring out how big the impact is can be complicated. It often needs experts and predictions about long-term effects.
It's important to know that impacts are only called an "infringement" if they leave Indigenous peoples with "no meaningful right" to hunt, fish, or trap. This means the impact has to be very severe.
Other things that affect how much consultation is needed include:
- The risk of damage that can't be fixed.
- How specific the promises made in treaties were.
- The history of how the government and Indigenous groups have worked together.
- Other groups' interests.
- Whether the government can control future changes to the project.
Challenges with the Duty to Consult
Even though the duty to consult is important, there are some challenges.
Who Does the Consulting?
Sometimes, the government lets other groups do the consulting. This can be local governments or even the companies doing the project. This can make things easier for big projects. But it can also cause problems. The duty is meant to be a nation-to-nation talk between the government and Indigenous peoples. Letting others do it might weaken this goal.
Critics say that when the duty is passed on, the quality of the consultation can suffer. The groups doing the consulting might not have the full power to make big changes or accommodations. This can lead to confusion about who is responsible for consulting.
Money and Resources
Taking part in consultations costs money and time. Indigenous communities need resources for research, meetings, and responding to proposals. Often, Indigenous groups don't have enough money for this. The government is not required to give them financial help. This can make it hard for them to fully participate.
For example, when the government proposes a project, they send many letters to affected communities. Responding to all these letters takes a lot of time and resources. These resources might be needed for other important things in the community, like housing.
Past and Future Impacts
It's not always clear if consultations should only look at the newest project. Or if they should also consider impacts from past projects. For example, if a new power line is built next to an old one, should the consultation also look at the impact of the old line? Courts have had different ideas about this. Some say past impacts are important to understand the present.
What Happens if it Fails?
If the government doesn't consult properly, the main thing a court can do is order them to go back and consult again. Indigenous communities cannot usually get money for damages from past failures to consult. This can be a problem, especially if the project has already caused harm.
See also
