What does the duty to consult First Nations, Inuit and Métis mean?

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.

'More lip service than substance'

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.

"The duty to consult should be more than an opportunity for Indigenous people to blow off steam. It requires meaningful engagement."

While he said there were examples of success in getting changes to projects through consultation, McIvor said the process does not guarantee an outcome — especially when Indigenous Peoples don't agree with accommodation measures or outright oppose a project.

"The duty to consult won't support them with that and it can actually lead to them ending up in jail," said McIvor.

"As long as [governments] follow the process, tick all the boxes, a court is going to decide in their favour."

Moving toward consent

McIvor said Canada needs to move toward consent, which has been affirmed in multiple cases by the Supreme Court of Canada.

"It's really important to shift that conversation because consultation ultimately is based on denial," said McIvor.

"It's based on the ongoing denial of Indigenous rights and what we need to move towards is the recognition and implementation of Indigenous rights."

The United Nations Declaration on the Rights of Indigenous Peoples recognizes Indigenous Peoples' right to free, prior and informed consent in a number of its articles, including before legislative or administrative measures are adopted and implemented by a state. 

Russell Diabo, a Kanien'kehá:ka (Mohawk) political analyst from Kahnawà:ke, south of Montreal, said the problem is Canada's interpretation of the declaration.

Last year, the federal government released its action plan to implement the United Nations Declaration on the Rights of Indigenous Peoples Act.

"They want a watered-down UN declaration," said Diabo.

"It's a non-binding declaration but it sets minimums to international standards. They're ignoring that and imposing domestic law to replace the UN declaration with Canada's definition of that, which is, again, back to the duty to consult."

Diabo said he wants to see the federal government fund Indigenous communities to conduct research, mapping and land-use planning for their treaty or traditional territories.

"I think they have a fiduciary treaty obligation to do that," he said.

King said more First Nations are doing things their own way.

"We're seeing more and more of these communities deploy their own frameworks for consultation and also consent," he said.

"They're less interested in waiting for the government to catch up with a consultation regime that's actually effective, and empowers those communities."