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Things to know

  • Indigenous communities in Canada (i.e., First Nations, Inuit and Métis) have constitutionally protected Aboriginal and treaty rights. The federal or provincial government has a duty to consult Indigenous communities when government conduct could adversely affect such rights (e.g., issuing a permit allowing a project to proceed).
  • Despite consultation being a duty owed by government to potentially impacted indigenous communities, project owners will be expected to carry out significant procedural aspects of consultation.
  • The federal or provincial government will supply project owners with a list of potentially affected
    indigenous communities. Consultation can involve the following:
    • meeting with Indigenous communities to share information about the project
    • providing reasonable resources for Indigenous communities to participate in consultation
    • responding to questions and concerns raised by Indigenous communities
    • maintaining a complete record of all Indigenous consultation activities
    • discussing any concerns or asserted impacts of the project on Indigenous or treaty rights
  • Consultation requirements are circumstance-specific and dependent on the nature of the rights at stake and potential project impacts.
  • The government, not the project owner, determines whether consultation has been adequate.
  • Indigenous communities that believe consultation has been inadequate can have the issue determined by courts, leading to project delay.

Things to do

  • Understand your consultation obligations to avoid regulatory delay and legal challenges.
  • Develop an Indigenous consultation strategy early in the life of a proposed project.
  • Keep abreast of legal developments to ensure that any changes in the law are incorporated into your consultation strategies.
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