Treaty 2 - August 21, 1871

Who Has the “Duty To Consult and Accommodate”?

The duty to consult is placed solely on the Crown. Private businesses do not have “a duty to consult”. But the Crown does have the duty through the issuing of permits and the making of laws to prevent the private sector from infringing upon the First Nations’ rights and interests.

However, it is just good business for the private sector to ensure: that the governments have actually fulfilled the Crown’s duty to consult, and if not, to work with First Nations to hold government responsible and encourage it to meet its obligations;

  • that it undertakes mitigation of impacts on First Nations rights and interests early on rather than to be caught in expensive and unnecessary delays later on;
  • that it has developed a good working relationship with First Nations who may be able to enhance the business plan in many ways.

Municipalities are creatures of provincial legislation. As such, the “duty to consult” remains with the federal and provincial governments acting on behalf of the Crown. This means that a municipality which contemplates a decision or action that might constitute infringement should contact the Crown (whose duties are fulfilled by the Provincial Government) to insist that the Crown fulfill its obligations.

This might be undertaking a project, issuing a permit, etc. If a municipality believes the Crown is not fulfilling its responsibilities, it should obtain a written statement from the Crown to that effect so that later the municipality is not stuck with heavy costs arising from damages.

The same principles mentioned above for the private sector also apply to municipalities: it is just good government to ensure the provincial and federal governments have fulfilled their duties, that they undertake required mitigation early on, develop a good working relationship – all will result in better government for the residents of the municipality.

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