The Canadian Constitution recognizes and protects the rights of Indigenous Peoples. This protection affects how the government can make certain decisions. When a project or measure could affect Indigenous Peoples’ rights, the government may have to consult the communities concerned and, in some cases, accommodate them. But what does this mean in practice?
What is the duty to consult?
The duty to consult comes from rights recognized to Indigenous Peoples of Canada, namely under the Constitution Act of 1982. This duty can apply to many government decisions and activities, including when the government issues permits, develops policies or regulations, or conducts negotiations. In Canada, Indigenous Peoples refer to First Nations, Métis and Inuit Peoples.
The duty to consult is triggered as soon as the government knows, or should know, that a right or Aboriginal title could exist and that it’s considering a measure that could have consequences on this right. It applies to both provincial and territorial governments, as well as the federal government.
The scope of this duty depends on the circumstances. When the issues are limited, it may be enough to inform the Indigenous communities concerned. The greater the potential impact, the more detailed the consultation may need to be. In some cases, the government must also obtain the consent of the affected Indigenous community. Consultation can be particularly important when a project could have an impact on the environment or on the exercise of rights related to the land, such as access to land, hunting or fishing.
However, this doesn’t mean that Indigenous communities have a veto over government decisions.
Based on the consultation, the government may have to take measures to take Indigenous peoples’ rights into account when a decision could negatively affect them. This is called the duty to accommodate. For example, the government may have to modify a project, construction, road route, or project timeline to avoid irreversible consequences or reduce their effects. It must seek to balance the rights of Indigenous Peoples with society’s other interests.
Based on the consultation, the government may have to take measures to take Indigenous peoples’ rights into account when a decision could negatively affect them. This is called the duty to accommodate. For example, the government may have to modify a project, construction, road route, or project timeline to avoid irreversible consequences or reduce their effects. It must seek to balance the rights of Indigenous Peoples with society’s other interests.
What happens if the duty isn’t respected?
If the duty to consult isn’t respected, the courts can intervene. For example, they can order the government to consult with the Indigenous communities concerned. In more serious cases, where the impact is greater, the courts can award money, also called damages, to Indigenous communities. This can happen, for example, when they government doesn’t act honourably or in good faith in its relations with Indigenous Peoples.
For example, in a 2025 Superior Court decision, Hydro-Québec was ordered to pay $5 million to an Innu community, as they were acting as an agent of the government. The court found, among other things, that Hydro-Québec had acted in bad faith during negotiations.