Section 35 of the Constitution Act

Section 35 of the Constitution Act, 1982 provides that:

1. The existing Indigenous and treaty rights of the Indigenous peoples of Canada are hereby recognized and affirmed.
2. In this Act, “Indigenous peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
3. For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
4. Notwithstanding any other provision of this Act, the Indigenous and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

The common law duty to consult is based on judicial interpretation of the obligations of the Crown (federal, provincial and territorial governments) in relation to potential or established Indigenous or Treaty rights of the Indigenous peoples of Canada, recognized and affirmed in section 35 of the Constitution Act, 1982. The duty cannot be delegated to third parties.

In the Haida and Taku River decisions in 2004, and the Mikisew Cree decision in 2005, the Supreme Court of Canada (SCC) held that the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Indigenous or Treaty rights. This duty has been applied to an array of Crown actions and in relation to a variety of potential or established Indigenous or Treaty rights.