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Things to know

  • First Nations and Métis communities in Canada have constitutionally protected Aboriginal and treaty rights. The Crown (i.e., the federal or provincial government) has a consultation obligation if contemplating conduct that could adversely affect such rights.
  • Despite consultation being the Crown’s duty, project owners will be expected to carry out significant procedural aspects of consultation.
  • The Crown will supply project owners with a list of affected communities, and 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 Aboriginal or treaty rights
  • Consultation requirements are circumstance-specific and dependent on the nature of the rights at stake and potential project impacts.
  • The Crown, 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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