Grade by Grade
B. People and Environments: The Role of Government and Responsible Citizenship · Government and Citizenship

The Duty to Consult and Accommodate

B3.6About 45 minutes
Learning goals
  • I can explain what the duty to consult and accommodate means.
  • I can explain who has this duty and why.
  • I can describe some situations where the duty to consult applies.
  • I can give examples of how a plan might be changed to accommodate a community.

Words to know

consult
To ask for someone's views and listen to them seriously before deciding.
accommodate
To change a plan to reduce harm to someone's rights or needs.
Aboriginal rights
Rights First Nations, Métis and Inuit have because their peoples lived on and used this land before Europeans arrived, such as hunting, fishing and gathering.
treaty rights
Rights promised in treaties between Indigenous nations and the Crown.
the Crown
The government acting with the authority of the monarch: in Canada, the federal and provincial governments.
honour of the Crown
The idea that governments must act honourably and keep promises in their dealings with Indigenous peoples.
traditional territory
The lands a First Nation, Métis or Inuit community has lived on and used for a very long time.

Before you build, ask!

Imagine a company wants to build a big mine beside a lake. For hundreds of years, a First Nation has fished in that lake, gathered medicines near its shore, and taught its children on the land. The First Nation's right to fish there is protected by a treaty.

Should the government just say "yes" to the mine without talking to the First Nation? No. In Canada, the federal and provincial governments have a duty to consult, and when needed to accommodate, First Nations, Métis and Inuit communities.

A wooden canoe rests on a rocky shore beside a calm lake surrounded by spruce and pine forest.
Lakes and forests like this one are where many First Nations have fished, hunted and gathered for generations. Treaty rights to use the land are why governments must consult before approving a project. AI-generated image

Where does the duty come from?

  • In 1982, Section 35 of Canada's Constitution recognized and affirmed the existing Aboriginal and treaty rights of First Nations, Métis and Inuit. (This is a different part of the Constitution from the Charter.)
  • These rights include things like hunting, fishing, gathering and using the land in traditional ways, and rights promised in treaties.
  • The Supreme Court of Canada decided, in court cases such as the Haida Nation case in 2004, that because of these rights and the honour of the Crown, governments have a duty to consult when they are thinking about a decision that could harm these rights.

The Crown means the federal and provincial governments. So the duty belongs to governments. Governments may ask a company to do some parts, like holding meetings, but the government is still responsible.

PlanNotifyListenAdjustThe duty to consult and accommodatethen the government decides and explains why
A simplified picture of the steps: the government plans a decision, notifies the community, listens seriously, adjusts (accommodates) where needed, then decides and explains its reasons.

When does the duty apply?

The duty applies when a government is thinking about doing or allowing something that might harm Aboriginal or treaty rights. For example:

  • a pipeline that would cross a First Nation's traditional territory
  • a mine or forestry project on land where a community hunts, traps or gathers
  • an agreement to take natural resources (like oil, minerals or timber) from treaty land
  • a dam or highway that would flood or cut through land a community uses

The bigger the possible harm, and the stronger the right, the deeper the consultation must be. A small change might need only a letter and a chance to respond. A huge project needs many meetings, studies, and serious changes to the plan.

smaller possible harmweaker claimbigger possible harmstronger righta letter and a chanceto respondmany meetings, studies,serious changes to the plandeeper consultation needed
The bigger the possible harm and the stronger the right, the deeper the consultation must be.

What does "accommodate" look like?

To accommodate means to change the plan to avoid or reduce harm. For example:

  • moving a pipeline route away from a sacred site or burial ground
  • not working during the season when fish spawn or caribou migrate
  • protecting an area of land from any building
  • having community members watch over (monitor) the project
  • sharing benefits, such as jobs, training or money

Consultation must be done in good faith: really listening, not just pretending. But under Canadian law today, consultation does not always mean a community can stop a project.

Different perspectives

Many First Nations, Métis and Inuit say governments should need their consent (their "yes") before big projects go ahead on their lands. The United Nations Declaration on the Rights of Indigenous Peoples talks about free, prior and informed consent, and in 2021 Canada passed a law to work toward putting this declaration into practice. Governments, companies and communities are still discussing exactly what this means. This is a topic where people have different views.

Worked example

Let's decide if the duty applies

Which situations probably trigger the duty to consult? (a) Ontario plans to allow logging in a forest where a First Nation has treaty rights to hunt. (b) A family repaints their house in Toronto. (c) The federal government considers approving a pipeline across Métis harvesting lands.

  1. Ask: Is a government thinking about a decision?
  2. Ask: Could it harm Aboriginal or treaty rights?
  3. (a) Government decision, could harm hunting rights: yes.
  4. (b) Not a government decision about Indigenous rights: no.
  5. (c) Government decision, could harm Métis harvesting rights: yes.

(a) and (c) trigger the duty to consult. (b) does not.

Worked example

Let's accommodate

A province wants to approve a new road to a mine. The road would cross a river where a First Nation fishes for whitefish, and pass close to a burial ground. Suggest accommodations.

  1. Listen first: the First Nation explains when fish spawn and where the burial ground is.
  2. Protect the sacred place: move the road away from the burial ground.
  3. Protect the fish: build the bridge outside spawning season and keep soil out of the river.
  4. Ongoing role: First Nation monitors check the river while the road is built.
  5. Benefits: jobs and training for community members, if the community wants them.

Move the road away from the burial ground, avoid spawning season, protect the river, include community monitors, and share benefits.

Hands-on activity

Practise consulting at home

This is a practice model to help you understand the steps. The real duty to consult is a constitutional responsibility based on Indigenous rights and treaties, which is much more serious than a family decision.

  1. Pick a family plan that affects someone else, for example: "We will turn the spare corner of the basement into a craft area," but your brother keeps his hockey gear there.
  2. Notify: tell the person affected about the plan before deciding.
  3. Listen: ask how it would affect them. Write down what they say.
  4. Adjust: change the plan to reduce harm (for example, put up hooks for the hockey gear).
  5. Decide and explain the final plan.

Talk about it: How did the person feel being asked before, not after? What would have happened if you had skipped the listening step?

Your turn

1

What does it mean to consult?

2

What does it mean to accommodate?

3

Who has the duty to consult: companies or governments?

4

Which part of the Constitution recognizes Aboriginal and treaty rights?

5

Give one example of a project that could trigger the duty to consult.

6

Name two ways a plan could be changed to accommodate a community.

More practice: warm-up

1

Which court decided governments have a duty to consult?

2

Name one Aboriginal right.

3

Whom must governments consult under this duty?

4

What does the Crown mean in Canada?

5

True or false: repainting a house in a city triggers the duty to consult.

More practice: on your own

1

Why must consultation happen before a decision, not after?

2

Why does a big pipeline need deeper consultation than a small change to a trail?

3

What does in good faith mean for consultation?

4

What is the honour of the Crown?

5

A company holds meetings with a First Nation about a new mine. Does that mean the government has no more duty? Explain.

Challenge

1

Explain the difference between being consulted and giving consent.

2

Why might a government, a company and a First Nation see the same pipeline project differently?

3

How could the duty to consult help build a better relationship between governments and Indigenous peoples?

Check your understanding

Quiz

1.

Who has the duty to consult and accommodate?

2.

When does the duty to consult apply?

3.

Which is an example of accommodating a community?

4.

Which part of Canada's Constitution recognizes Aboriginal and treaty rights?

5.

What does consulting in good faith mean?

6.

Which project would most likely need the deepest consultation?

For parents and teachers

Big idea: Because Section 35 of the Constitution recognizes Aboriginal and treaty rights, the federal and provincial governments must consult First Nations, Métis and Inuit communities, and accommodate them where appropriate, before making decisions (like approving pipelines, mines or resource extraction on treaty land) that could harm those rights.

How to help at home:

  • When you see news about a pipeline, mine or dam, ask: "Whose rights might be affected? Did the government consult?" Keep the conversation balanced; this is an area of ongoing public debate.
  • Use the practice activity to talk about why asking before deciding matters.

Common difficulties:

  • Thinking the duty belongs to companies. It belongs to governments (the Crown).
  • Thinking consultation means a community can always say no, or the opposite, that consultation is just a formality. Under current Canadian law, it must be meaningful and may require real changes, but it is not always a veto. Many Indigenous nations call for free, prior and informed consent.
  • Treating the family activity as the same thing. It is only a model of the steps.