Duty to consult with First Nations

The duty to consult and accommodate process was established by Canadian courts upon interpretation of the recognition of Aboriginal rights in the Canadian Constitution. Section 35 of the Constitution Act, 1982 states that "the existing Aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

The duty to consult and accommodate process is part of the duty of all federal and provincial governments to maintain the honour of the Crown. This obligation is tied in part to treaties that were entered into prior to New Brunswick’s creation. The treaties and the history of the relationship between the Crown and Indigenous peoples is unique to each province. In the Maritime provinces, a series of historic Peace and Friendship Treaties were signed by the British government and the Mi’gmaq, Wolastoqey and Peskotomuhkati peoples between 1725 and 1779. In addition, many decisions by a province may involve the federal government that has overriding responsibility to Indigenous peoples in Canada. The Province of New Brunswick must navigate the complex relationships in a manner that follows the direction of the court and that balances the rights of Indigenous peoples with overarching societal interests.

The honour of the Crown requires the Province to act with integrity, respect Indigenous peoples’ rights and live up to the Province’s legislated duties. The Department of Indigenous Affairs’ mandate includes making sure this honour is maintained in the duty to consult and accommodate process.

The duty to consult and accommodate process will vary and may look different depending on the decision being considered by the Province. At its core, it is an honourable process to provide a mechanism for a meaningful dialogue where First Nations can raise concerns, for the Province to take those concerns into account when making a decision that could have an adverse impact on Aboriginal and treaty rights, and for the Province to provide commensurate accommodations if that adverse impact is confirmed. A description of the duty to consult was provided by the former Chief Justice of the Supreme Court of Canada, Beverley McLachlin, when she stated:

At all stages, good faith on both sides is required. The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown's reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107 (B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal people's right to be consulted.

Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 Supreme Court of Canada at 42

The Department of Indigenous Affairs is mandated to lead a whole-of-government approach to consultation with First Nations. This means that all consultations with First Nations are coordinated through the department and based on an established five-step process that is applied consistently throughout the Government of New Brunswick. Accommodation commitments that result from the duty to consult are acted on following a second five-step process.

Contemplated actions or decisions, i.e. policies, legislation, land use planning, economic development, etc., are assessed by the Department of Indigenous Affairs with the support of the responsible departments. If it is found that a decision or action being contemplated has the potential to adversely impact the Aboriginal or treaty rights of New Brunswick First Nations, then the duty to consult and accommodate process is triggered.

If the duty to consult is triggered, the Department of Indigenous Affairs is responsible for leading the consultation process. The lead decision-making department or agency is responsible for working with the Department of Indigenous Affairs throughout the consultation process and providing the necessary expertise and knowledge related to their government programs and services. A process consisting of five distinct steps is followed, the design of which is to ensure that the rights of First Nations are respected and is in keeping with the direction of the court.

The first step of the duty to consult process is an initial assessment of a contemplated action or decision by the province to determine whether there is a potential for an adverse impact to established or asserted Aboriginal and treaty rights. This assessment is done using all information made available to the Department of Indigenous Affairs at the time. The province is always open to receiving new or additional information from First Nations and adjusting its assessment under this step based on what First Nations share.

Provincial contemplated actions or decisions can include:

• issuance of permits or leases
• authorizations or approvals
• environmental impact assessment (EIA) determinations
• infrastructure or other projects
• strategy and policy development

If the duty to consult process is triggered, the initial assessment will determine the next steps.

In this step, First Nations are notified of the contemplated decision or action under consideration and provided with a summary description, relevant information and the outcome of the initial assessment completed in step 1.

In addition to the information outlined above, this notification also sets out:

• a proposed timeline for each remaining step of the process
• an offer to meet with First Nations to answer any initial questions
• the provision of any funding to First Nations for their participation and other items as may be required

Each duty to consult process is tailored to the decision or action being contemplated, and the Aboriginal and treaty rights that have the potential to be adversely impacted.

This step of the duty to consult process is for First Nations to share any information with the province and/or proponent.

This may include:

• information they have related to their rights
• the impact the decision or action may have on those rights
• how they think the province and/or proponent should address those impacts to rights
• any other concerns that they may have

There is no restriction on what information the First Nations can share, and, in some cases, further meetings will be held during this step to ensure the province has, and clearly understands, all the information provided to date.

If new information regarding a decision or action being contemplated is shared, the province would take that into consideration.  

This step includes further dialogue and exchange of information between First Nations and the Province. Through correspondence and meetings, information is presented, and further concerns, potential adverse impacts, and possible mitigation and accommodation measures are discussed.

It is the intention that the Province and First Nations will have a complete understanding of each other’s interests and concerns by the end of this step. There can be disagreement and difficult topics and conversations, but the Province is always seeking to have good faith discussions that are focused on finding common ground, including on the identification of impacts to Aboriginal and treaty rights and appropriate mitigation or accommodations where necessary and appropriate.

The need for and nature of mitigation or accommodation will vary depending on the identified potential adverse impact. In some cases, accommodation may include economic contributions to First Nations, mitigating the impact through changes to the implementation of the decision or action, involvement of First Nations in phases of implementation of any decision or action or other steps by the Province and/or proponent to address the concerns raised by First Nations.

This information is provided to First Nations, and in certain cases, sets out the need for further meetings or discussions to ensure the proposed accommodations are tailored to achieve the best result with First Nation input.

If a consultation resulted in accommodations, an additional process specific to the accommodations is followed and is integrated at Step 4.

After completing the significant work associated with steps 1 through 4, the province takes the information gathered through discussions and correspondence, including the issues and tracking log, and conducts an evaluation of the entire duty to consult process. This evaluation includes ensuring that all issues and concerns raised have been addressed. The Department of Indigenous Affairs reports to the decision maker regarding the consultation process, the proposed accommodations and any matters that were raised as part of the consultation. The decision maker may decide to not proceed with the decision or action, to amend or modify details related to the decision or action, proceed as planned with accommodations for impacts to Aboriginal and treaty rights as needed, or some combination of the above to ensure adverse impacts are appropriately addressed.

Although courts have stated that proponents and third parties do not have a duty to consult, they do play an important role in the Province’s duty to consult and accommodate process because they often have in-depth knowledge of their proposed project and are better positioned to provide First Nations with detail at the project planning stage long before approval is sought by the Province. This most often puts proponents in the best possible position to address concerns and potential adverse impacts to Aboriginal and treaty rights, including avoiding and mitigating First Nations concerns early on.

The Department of Indigenous Affairs regularly provides guidance to proponents as it relates to early engagement with First Nations and the duty to consult and accommodate process. To facilitate early engagement, the department can provide contact information for First Nations to proponents who are contemplating projects and want to engage with First Nations. Many First Nation communities in New Brunswick are supported by a consultation body and each may have a different structure and approach.

Once the Department of Indigenous Affairs receives adequate information regarding a contemplated project, the Consultation and Accommodations Branch within the department completes its initial assessment for potential adverse impacts to Aboriginal and treaty rights (Step 1 of the duty to consult process) and will provide written notification to First Nations should there be a requirement for formal consultation. This notification is also shared with proponents and, although proponents and third parties do not have a legal duty to consult, the Province may delegate procedural aspects of consultation to the proponent as part of the duty to consult process.

Proponents are encouraged to contact the Department of Indigenous Affairs with any questions and guidance on initial steps to be taken to ensure meaningful engagement and consultation with First Nations as soon as possible.