Duty to Consult

The duty to consult applies to rights that are claimed even if they have not been proven in court. It applies to actions that affect rights in a Self-government Treaty or Agreement or a Modern Treaty as well.

Aboriginal or Treaty rights, including rights that are claimed but not proven, can be affected by a wide range of government action including:

• fish and wildlife management
• resource extraction
• environmental approvals
• land use planning

This does not mean that no action can be taken that negatively affects these rights. It means the Indigenous group must be included in the decision-making process.

There are different levels of consultation required depending on how severe the harm could be. If the right is not already proven it also depends on the likelihood that the right exists. 

If the claim to a right is weak and the risk of harm is slight, the government has a more limited duty to consult. They may only need to give notice to the group, provide information about what they are going to do and discuss any issues raised by the group. 

If the risk of harm is great and there is a strong case for the right more is needed. The group would need to take part in the decision-making process. In some cases, funding needs to be provided to the Indigenous group so they can take part in the process. The government must show how any concerns raised were considered. This would be more than just recording concerns. It means the government would need to work with the group to try to find a way to accommodate the concerns. 

In some cases, the consent of the Indigenous group is needed. For example, if the Indigenous group has proven Aboriginal Title over the area and the action restricts an activity like hunting or fishing or the government plans to use the land.