Question: Why do I need advice on working with Indigenous communities?

Answer: If you are coming into a project or venture with a good heart, open mind and willingness to talk, you are off to a good start. You may not need an Indigenous relations advisor, facilitator or someone to help set the table for engagement with First Nations, Métis, Inuit or urban Indigenous communities.

However, you’ll quickly find that with professional, Indigenous relations and community engagement advice and services, your learning curve will be significantly reduced. You’ll have experienced personnel to take on much of the planning and follow-up you will inevitably incur. You’ll also avoid many of the pitfalls that will hamper your Indigenous engagement or negotiations.

More importantly, there are some legal considerations that may play a factor in your project or venture. This is called the “duty to consult”. In some cases, you’ll need to consider accommodation of the interests of Indigenous peoples and their governments through mitigation, further dialogue and partnerships.

Question: What is the Duty to Consult?

Answer: The Supreme Court of Canada, through various decisions, have affirmed that the Crown has a common law obligation to consult with First Nations, Métis and Inuit in the event that a project or decision has an adverse impact to existing Aboriginal and treaty rights.

In Haida Nation (2004), Taku River (2004) and the Mikisew Cree (2005) decisions, the Supreme Court held that the Crown not only has a duty to consult, but in some cases, they have a duty to accommodate the interests of Indigenous communities when the actions may have an adverse impact on these rights.

  • Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73
  • Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004SCC 74
  • Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69

Question: What are Aboriginal and Treaty Rights?

Answer:  Long before the arrival of settlers to Turtle Island (North America), many Indigenous nations existed, unabated, throughout their traditional territories. The rights that the people, their families, communities and nations had at that time, forms the basis for the modern day interpretation of Aboriginal Rights.

Aboriginal Rights are those rights that existed historically prior to the settlement of Canada. These rights are constantly being interpreted and defined through the courts and through agreements. Also, these Aboriginal rights may, or may not, be addressed in the Treaties.

Such rights include the right to self-government, the right to maintain and preserve Indigenous culture and languages and much more. In some cases, it may include land-use, settlement, economic development and harvesting on lands that may be subject to Aboriginal title or remain unceded.

Treaty rights, are those rights, entitlements, benefits and protections that were addressed when the Crown and First Nations signed the treaties. These may include hunting, fishing, trapping, harvesting, housing, health care, education, annuities and other sources of revenue, mineral rights, forestry rights, and so on. Each treaty may reference various specific and non-specific rights. Also, each First Nation may have their own interpretation of treaty rights which may differ from the interpretation of the Crown.

Section 35 of the Constitution Act of Canada recognizes and affirms both Aboriginal and Treaty Rights. These rights may be in flux, or even open to interpretation, but one thing is clear — they cannot be ignored.

Question: But the Duty to Consult rests with the Crown. Why does that have an impact on my business or project?

Answer: It is true that the duty to consult and accommodate the rights and interest of Indigenous people rest with the Crown. However, there may be times that the Crown may assign the procedural aspects of consultation to project proponents.  Whether or not the Crown holds the duty, this does not absolve those companies who want to do business on First Nations and Métis traditional lands.

Often times, the duty to consult may impact a business or project when government approvals are needed, or Crown permits are required. Your relationship, earnest engagement and agreements with Indigenous communities could be a significant factor in getting your approval or permit. The Crown may not have an interest in your business or project. So why would you depend on their role in discharging the duty to consult and engaging Indigenous communities?