Duty to Consult

The doctrine says that governments must consult with Indigenous communities whose Indigenous or treaty rights may be affected by government decisions. This requirement applies even where there has not been a final legal resolution of the scope of the rights at issue.

The duty to consult exists so that governments become aware of the potential effects of their decisions on Indigenous and treaty rights in advance, allowing them to make appropriate adjustments. The courts have repeatedly made very clear that the duty is not meant to create a veto power held by Indigenous communities. It is a real protection for Indigenous communities, and that must not be forgotten. But it does not create a utopian legal requirement for the unanimous agreement of Indigenous communities along a pipeline route.

Duty to Consult (from Government of Canada Website)

The Government of Canada consults with Canadians on matters of interest and concern to them. Consulting is an important part of good governance, sound policy development and decision-making. Through consultation, the Crown seeks to strengthen relationships and partnerships with Indigenous peoples and thereby achieve reconciliation objectives. In addition to pursuing policy objectives, the federal government consults with Indigenous peoples for legal reasons. Canada has statutory, contractual and common law obligations to consult with Indigenous groups. The process leading to a decision on whether to consult includes a consideration of all of these factors and their interplay.

Canadian Aboriginal Consultation and Accommodation

Updated Canadian Guidelines for Federal Officials to Fulfill the Duty to Consult

Research Paper: The Crown’s Constitutional Duty to Consult and Accommodate Indigenous and Treaty Rights

Manitoba - Duty to Consult

The Government of Manitoba recognizes it has a duty to consult in a meaningful way with Indigenous communities when any proposed provincial law, regulation, decision or action may infringe upon or adversely affect the exercise of a treaty or Indigenous right of that Indigenous community.

Manitoba Crown Consultation Information Website

Interim Provincial Policy For Crown Consultations with First Nations, Métis Communities and Other Indigenous Communities

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