Duty to Consult

What is Duty to Consult and Accommodate?

Duty to Consult and Accommodate (DTCA) arose out of the Supreme Court of Canada’s judgments in the Haida Nation case, as well as the Taku River Tlingit First Nation and Mikisew Cree First Nation cases, which opened up new possibilities for relationships between governments and Aboriginal communities.  This duty requires governments to consult First Nations, Inuit and Métis peoples and accommodate their interests whenever a Crown considers conduct that might adversely affect Aboriginal rights or interests.

Who is responsible for DTCA?

The legal framework determines that the  duty flows from the honour of the Crown and s.35 of the Constitution Act, 1982.  The duty applies when the Crown has real or  constructive knowledge of the potential   existence of Aboriginal rights or title that may be at risk from a course of action being contemplated by a Crown.  The duty demands that all governments work with Aboriginal peoples to understand their interests and concerns prior to authorizing or proceeding with a plan, policy, development or activity that has the potential to affect Aboriginal rights.

What is the purpose of DTCA?

The purpose of the duty is achieved when government addresses, modifies or reconciles its actions with Aboriginal interests in a real and substantive way.  It is designed to promote the transformation of the existing relationship between the Crown and First Nations, Inuit and Métis peoples to a new   relationship based on consultation, accommodation, just settlements and reconciliation.

What triggers a DTCA?

DTCA may be triggered by Government decisions and actions that have the potential to adversely impact the exercise of Treaty and Aboriginal rights and pursuit of tradi-tional uses. The decisions and actions that will be assessed by governments for potential consultation obligations include, but are not limited to the following:

  • Legislation, regulation, policy and strategic plans
  • Fish and wildlife management
  • Resource extraction
  • Land reservations
  • Land use planning
  • Lease, grant or sale of unoccupied crown land
  • Changes to public access
  • Environmental approvals

What are Métis Nation-Saskatchewan principles concerning engagement, consultation, and accommodation?

  • The fulfillment of the duty requires good faith on the part of all parties and consultations must be conducted in equitable, transparent and respectful manner.
  • Timelines must be reasonable and provide sufficient opportunity for the Métis to review and assess the information provided by the Crown or industry.
  • The Crown must recognize and support the unique capacity needs and realities of the Métis people and
  • Timelines must be reasonable and provide sufficient opportunity for the Métis to review and assess the information provided by the Crown or industry.
  • The Crown must recognize and support the unique capacity needs and realities of the Métis people and their elected governance structures at the local, regional and provincial levels.
  • The Crown must provide the necessary funding/capacity to Métis government or ensure the necessary funding/capacity is provided to Métis government to engage with government and/or industry, as well as with Métis citizens.
  • Consultations must be with the Métis government structures that are elected and supported by the Métis people.  Consultations with individual Métis, service delivery organizations, mayors and municipal councils, and pan-Aboriginal structures cannot discharge the duty owed to the Métis, as a rights–bearing people.
  • Métis government has the responsibility to consult with its citizens and represent its citizens, not the Crown or industry.
  • Métis consultation processes must provide all Métis citizens the opportunity to participate and be heard (i.e. public meetings, |timely information, etc.)
  • Ultimate decision-making with respect to consultation and accommodation must rest with the affected rights-bearing Métis community.

Links to:

Provincial Guidelines
Federal Guidelines