What does the duty to consult First Nations, Inuit and Métis mean?
CBC
You've probably heard the phrase duty to consult, or failure to consult, when it comes to governments and their relationships with First Nations, Inuit and Métis.
But what does it actually mean?
Stemming from three Supreme Court of Canada decisions in 2004 and 2005, it's a legal obligation of the Crown to consult and, where appropriate, accommodate Indigenous Peoples before decisions are made that may infringe on Aboriginal and treaty rights.
The requirement applies to the federal, provincial and territorial governments and encompasses a wide range of government activities from regulatory review boards to licensing and permits but is most apparent on projects with impacts on the environment and Indigenous Peoples' access to land, water and resources.
"For the past 15 years, we have provinces and the federal government sort of scrambling to figure out what this means," said Hayden King, executive director of the Yellowhead Institute and a member of Beausoleil First Nation in Ontario.
While the obligation is the same across governments, how provinces and territories fulfil their duty to consult varies.
"It's pretty remarkable that after 15 years, we still don't have a standardized consultation process," said King.
"In many instances across the country, we see also the failure of consultation, where it's just simply not being done. It's not being done well enough."
The federal government developed a lengthy step-by-step guide for federal officials on how to fulfil the duty to consult. The first steps consider the adverse impact on rights and strength of claim of said rights, which determines the level of consultation required.
If there is no serious impact, the consultation process includes a notice and disclosure of relevant information and discussion of issues raised in response to the notice. Alternatively, if there is a serious adverse impact on rights, there is a lengthier and more in-depth consultation that could include multiple meetings, site visits, research and studies.
However, the burden of proof of a claim to rights relies on First Nations, Inuit and Métis. King said the capacity and expertise to respond to every request for consultation can be a challenge.
"Getting a letter in the mail doesn't really constitute consultation if you can't engage in the process," he said.
Bruce McIvor, a Métis lawyer and partner at First Peoples Law based in Vancouver, said in his experience working with Indigenous Peoples from coast to coast to coast, some provinces are sophisticated in how they fulfil these obligations, while others are behind the times.
"What you'll see in different situations is that it's more lip service than substance," he said.