Honour of the Crown: Duty to Consult
The "duty to consult" is a legal obligation, primarily within the context of Canadian law, requiring governments to consult with Indigenous peoples when considering actions that could negatively impact their established or potential Aboriginal or treaty rights.This duty arises from the Honour of the Crown and is derived from section 35 of the Canadian Constitution, which recognizes and affirms Aboriginal and treaty rights.
GLOBAL PERSPECTIVE
The global duty to consult Indigenous peoples stems from international law, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This principle recognizes the right of Indigenous peoples to participate in decision-making processes that affect their rights and to have their free, prior, and informed consent sought before actions are taken that may impact them.
Key Aspects of the Global Duty to Consult include the United Nations Declaration of Rights for Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in 2007.
Meet Cynthia Westway
Cynthia is Senior Counsel at First Peoples Law LLP, where she relies on her experience as Senior Counsel at the Aboriginal Affairs, DOJ Canada and as the Director General and Head of Justice Legal Services for Global Affairs. She holds degrees in dance, literature, law and comparative law, studying the legal regimes for Indigenous Peoples of New Zealand, Australia, Canada and the United States, and has worked tirelessly for over 20 years defending and advancing the rights of Indigenous Peoples across Canada.
Quotes
“If you believe in the power of words, you can bring about physical changes in the universe.” – N. Scott Momaday
“Man has responsibility, not power.” – Tuscarora Tribe
For a Duty to Consult process to be meaningful, a potentially affected Indigenous Nation requires comprehensive project information be provided directly — with sufficient time and expertise to review and provide commentary on that information. - MNP.ca
First Reading
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation, and an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights.
Bruce is a proud Métis from the Red River in Manitoba.
"Anyone still unsure when and how the duty to consult is intended to apply has not done their homework.
First Nations have borne the disproportionate burden of clarifying the law around the duty to consult and accommodate. Faced with governments that ignore the Supreme Court’s clear directions, First Nations have been forced to expend their energy and limited resources on litigation to defend their Aboriginal title, rights and treaty rights. In court they are opposed by governments and companies with comparatively unlimited resources derived in large part from exploiting Indigenous lands.
The law of the duty to consult is clear and workable. Complaints from industry to the contrary smack of an underlying, different agenda. Similar to industry lobbyists' complaints of too much ‘red tape’, those who grumble that the law of the duty to consult has too much uncertainty likely mean there is just too much of the duty to consult.
Instead of blowing smoke in our eyes with complaints about a lack of clarity surrounding the duty to consult, industry and its sympathizers should be pressing governments to live up to the spirit and intent of their constitutional obligations to Indigenous Peoples."
Bruce McIvor
Second Reading
The Government of Canada has a duty to consult and, where appropriate, accommodate Indigenous groups when it considers conduct that might adversely impact potential or established Aboriginal or treaty rights. The duty stems from the Honour of the Crown and is derived from section 35 of Canada's Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights.
Government of Canada (canada.ca)