Duty to Consult

Duty of the Crown to Consult and Accommodate

In 2004, in the Haida and Taku cases, the Supreme Court of Canada set out a new legal framework – the Crown’s duty to consult and accommodate. This duty flows from the honour of the Crown and s. 35 of the Constitution Act, 1982. This new duty requires governments to consult Indian, Inuit and Métis peoples and accommodate their interests whenever a Crown actor considers conduct that might adversely affect Aboriginal rights or interests.

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. The purpose of the duty is achieved when government addresses, modifies or reconciles its actions with Aboriginal interests in a real and substantive way.

Overall, the duty is designed to promote the transformation of the existing relationship between the Crown and Indian, Inuit and Métis peoples to a new relationship based on consultation, accommodation, just settlements and reconciliation.

The MNO has negotiated and executed nine Regional Consultation Protocols. These are: