Engagement: Consultation and Accommodation - Guidelines for Federal Officials to Fulfill the Duty to Consult

The Duty to Consult

In 2004, through the Haida and Taku River decision, followed by the Mikisew Cree decision in 2005, the Supreme Court of Canada established that the Crown is obligated to consult and, if necessary, accommodate when considering actions that could potentially affect established or potential Aboriginal or Treaty rights. The duty stems from the Honour of the Crown and is derived from Section 35 of Canada's Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights. The Court interpreted that this obligation is linked with the Crown's distinct relationship with Indigenous Peoples.

Consultation and Accommodation Guidelines

The Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult - March 2011 outline the overarching approach to consultation and accommodation for the Government of Canada.

"Crown conduct" refers to projects or activities by the provincial, territorial and federal governments. The Government of Canada has responsibility for its actions undertaken, either directly or by a third party through issuing an authorization, permit or financing for enabling an activity. Consultation must occur prior to a decision and implementation of a project or activity.

What does meaningful engagement mean?

The Government of Canada is committed to renewing the relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation and partnership. Consultation and engagement activities are a reflection of the government's commitment to a whole-of-government approach to Nation-to-Nation and Inuit-to-Crown relationships and therefore, the participation of Indigenous Peoples in the renewal of the guidelines is crucial to this exercise.

The Consultation and Accommodation Unit of CIRNAC, has partnered with Naut'sa mawt Resource Group to host the engagement sessions with Indigenous Peoples across the country. Naut'sa mawt Resource Group is an Indigenous-owned firm that provides engagement and facilitation services to promote meaningful inclusion of Indigenous voices.

Process flow

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1. Preliminary Discussions: Fall 2023 to Winter 2024
2. Guidelines Discussions - Phase 1: Winter 2024 to Fall 2024
3. Options for New Guidelines: Summer 2024 to Winter 2025
4. Guidelines Discussions - Phase 2: Winter 2025 to Fall 2025
5. Guidelines Finalization and Publication: In 2026

Preliminary engagement

Preliminary engagement with Indigenous partners took place virtually from August 2023 to January 2024. This preliminary engagement focused on discussing the initiative, the approach to engagement, and provided the opportunity to learn about partners preferred means for participation in this engagement process.

Engagement

Regional engagement will occur in two phases beginning in 2024 and continuing throughout 2025.

Phase 1

The Consultation and Accommodation Unit hosted regional engagement sessions, from February 2024 until September 2024, to capture Indigenous perspectives of experiences in consultation and accommodation processes. The learning from the first phase of engagement in 2024 will inform the drafting of options for new consultation and accommodation guidelines content that will be done in collaboration with Indigenous partners. A virtual session was held in fall 2024 for people who did not have the opportunity to attend in-person sessions.

What we learned to date

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• Improve cultural competency
• Support meaningful participation
• Level power imbalance
• Ensure flexible and adaptable processes
• Initiate early and transparent dialogue
• Consider and address cumulative effects
• Prioritize respect and understanding
• Consider role of federal government in advocacy for rights
• Explore accountability and monitoring mechanisms

Phase 2

The second phase of regional engagements will aim to present ideas for the proposed draft content of new guidelines, building on what was learned during Phase 1. It will allow participants to provide feedback on these ideas before the content is drafted and finalized and will ensure that Indigenous People's perspectives are well captured. This phase of engagement will take place between February to December 2025. Virtual sessions will take place in fall 2025 for people who did not attend in-person regional engagement sessions. If you would like to participate, please contact indigenous.consultations.autochtones@rcaanc-cirnac.gc.ca.

What we learned reports

Two "What We Learned Reports" will be developed during the process. An interim report that captures Phase 1 regional engagement sessions is currently being finalized and will be available in 2025. A final report will be developed after the completion of Phase 2 engagement.

Publication

Publication of the renewed guidelines is anticipated in 2026.