Frequently Asked Questions
Q: Why do I need advice on working with Indigenous communities?
Q: What is the Duty to Consult?
Q: What are Aboriginal and Treaty Rights?
Q: But the duty to consult rests with the Crown. Why does that have an impact on my business or project?
Q: What are the critical factors to working with Indigenous communities?
- Q: Why do I need advice on working with Indigenous communities?
A: 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 set the table for your Indigenous engagement.
However, you’ll quickly find that with professional Indigenous relations and community engagement advice and services, the learning curve will be significantly reduced, you’ll have expert personnel to take on much of the follow-up you will inevitably incur and you’ll avoid many of the pitfalls that will hamper your engagement or negotiations.
More importantly, there are some legal considerations that may play a factor in your project or venture. This is called the legal “Duty to Consult” and, in some cases, accommodate the interests of Indigenous communities.
- Q: What is the Duty to Consult?
A: The Supreme Court of Canada, through various decisions, have affirmed that the Crown has a common law obligation or duty to consult with First Nations, Métis and Inuit communities in the event that any decision made that might have an 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, a duty to accommodate the interests of Indigenous communities when the actions may have a adverse impact on these rights.
- Haida Nation v. British Columbia (Minister of Forests),  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),  3 S.C.R. 388, 2005 SCC 69
- Q: What are Aboriginal and Treaty Rights?
A: Long before the arrival of settlers to North America, many Indigenous nations existed unabated through their traditional territory. 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 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 language, in some case it may include occupation, settlement or practices on land that may be subject to Aboriginal title.
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 sources of revenue, mineral rights, forestry rights, and so on. Each Treaty may refer to different 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 always be in flux, or open to interpretation, but one thing is clear — they cannot be ignored.
- Q: But the Duty to Consult rests with the Crown. Why does that have an impact on my business or project?
A: It is true that the duty to consult and accommodate the rights and interest of indigenous people rest with the Crown. But that 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 agreement with Indigenous communities could be 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?