21 The Duty to Consult

The Duty to Consult is an obligation of the Crown to consult Indigenous groups when undertaking a project that affects their Aboriginal rights and title. This duty arises when Indigenous people have a land claim that has not yet been resolved.

The famous case of Delgamuukw v. British Columbia, decided in 1997, created the Duty to Consult. Legally, the Crown owes a fiduciary duty (also known as a duty of loyalty) to Indigenous peoples. The Crown must abide by this fiduciary duty and fulfil its Duty to Consult in order to maintain its honour in negotiations.

The Duty to Consult holds the Crown to obligations that live on a spectrum. If the impact of a project is transitory, or if the project is on territory with a weak claim to title, then the duty may be a mere “discussion” of important decisions with the affected Indigenous group. The Supreme Court of Canada follows this up in Delgamuukw with, “In most cases, [the Crown obligation] will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation [emphasis added], particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.” ^[1]

In the more than two decades since this decision, there has been no identifiable case where full consent of the Aboriginal nation was required.^[2]

The Duty to Consult has a number of purposes. First, it is intended to be one among many tools that will build a nation-to-nation relationship between Canada and Indigenous Peoples. Second, courts have been struggling with maintaining the Canadian government’s sovereignty to make decisions while respecting Indigenous rights, and the Duty to Consult is a means to bridge that gap (Ritchie, 2013). This is discussed more in the next two sections.