The “duty to consult” is a principle in Canadian law developed by the Supreme Court of Canada. When governments make decisions that could affect Aboriginal or treaty rights, they have a legal obligation to consult the potentially impacted Aboriginal communities. The duty arises most often in natural resource extraction such as oil and gas, mining, and forestry.
Who is bound by the duty to consult?
Currently, only government (“the Crown”) is legally bound by the duty to consult, not industry. In other words, third parties, including companies working on projects, do not owe a duty to consult – it ultimately rests on the Crown. However, the Crown may delegate procedural aspects of the duty to consult to industry professionals. The law does not specify which procedural aspects of consultation may be delegated or the permitted scope of the delegation. In an effort to establish better guidelines around the process, many provinces now have their own policies on consultation.
How does it work in Alberta?
Under The Government of Alberta’s Policy on Consultation with First Nations on Land and Resource Management, 2013, the province created the Aboriginal Consultation Office (ACO) to provide consultation management services to meet the needs of First Nations, the Alberta Energy Regulator (AER), and project proponents (industry) in a consistent manner. The ACO acts as a more formal and structured link between First Nations, industry, and government to fulfill the duty to consult. In order to provide consulting parties with clear direction and standards for consultation activities, the ACO developed The Government of Alberta’s Corporate Guidelines for First Nations Consultation Activities, 2013. It should also be noted that not all First Nations accept the legitimacy of this policy. Many have developed their own consultation guidelines.
From a regulatory standpoint, the ACO works closely with the AER to ensure that consultation required for applications to the AER occurs prior to the AER’s regulatory decisions. In addition, Statements of Concern received by the AER are provided to the ACO for analysis. For more information about Statements of Concern, read “Five things to know about getting involved in regulatory hearings in Alberta” .
What happens if consultation does not happen?
The depth of consultation required depends on the potential adverse impacts and the strength of the Aboriginal or treaty right.
Third parties cannot be held legally liable for failing to meet the Crown’s duty to consult. However, if the duty to consult has not been met, third party interests can still be harmed by project shutdowns or delays. The Crown may be ordered by the Courts to conduct further consultation until legally determined that the duty to consult has been met.