What is the Duty to Consult and Accommodate … and Why Should I Care?

By Martin Charlton Communications

Tracy Campbell is not surprised that engineers and geoscientists might be confused about how to ensure their projects avoid lawsuits and protests related to Aboriginal and treaty rights.

As Principal with Calliou Group, she acts as a consultant to assist First Nations and Indigenous groups and individuals across Canada to protect their Section 35 rights.

This section of the Constitution Act 1982 recognizes and affirms existing Aboriginal and treaty rights. It indicates that the “Aboriginal peoples of Canada” includes the First Nation, Inuit and Métis peoples of Canada.

Campbell identified the competing views that exist in Canadian society around these rights and their connection to the projects of geoscientists and engineers. Proponents of a project and the Crown say it will have no effect on Section 35 rights and Indigenous people point out how there will be negative effects. That difference makes for a contentious relationship.

She explained that there are three main hurdles for engineers and geoscientists looking to avoid this confusion and contention.

First, there is a general lack of recognition of Section 35 rights. Questions about who holds these rights and what those rights include are just the beginning. Then, there is a lack of identification of what impacts those rights. Finally, appropriate accommodation of those rights is not implemented often enough.

That is what makes the duty to consult and accommodate crucial, which she explained is the “process of identifying and seeking to address potential adverse effects to the exercise of Section 35 rights.”

Looking to provincial governments for direction on what is expected and required of proponents of a project does not provide adequate guidance, Campbell explained. Each province will have different guidelines and policies and they are not to the level that the courts have determined is appropriate.

She provided the definition of treaty rights that the Saskatchewan government relies on, which is the beginning of the issue. She pointed out how narrow that definition is and how that could lead to skipping over looking for impacts to rights and accommodating them.

Her expertise is in Section 35 rights as well as environmental assessment methodology and regulatory review. At the intersection of those three lies the duty to consult and accommodate.

Just as is done in environmental assessment methodology, she advises proponents of a project to identify impacts and then identify what to do about them.

She recommends following standardized steps that scientists use to identify biophysical or socioeconomic changes. Pick what to study, set parameters for the study, collect information about the specific project and describe how change will be measured.

When identifying impacts, she strongly discourages against relying on traditional land use (TLU) evidence to determine when there is a duty to consult and accommodate. TLU evidence is being used by governments to attempt to narrow where rights exist to only where Indigenous people use the land, which she said is problematic. She explained there is a reason why more projects are being litigated due to the misuse of TLU. It is important to consult Indigenous people on current use of the land and resources for traditional purposes.

Campbell advises going above provincial minimums – particularly in Saskatchewan and Alberta – and following the direction of the Supreme Court of Canada over the last 30 years to establish meaningful consultation with Indigenous people about their Section 35 rights. She likens it to employers referencing safety regulations and choosing to go above the bare minimum required to provide adequate protection to their employees.

Ignoring what the courts across Canada are deciding can be a risk. She pointed out how projects in Saskatchewan could be impacted by a decision by the British Columbia Supreme Court last summer.

That court ruled that the rights of the Blueberry River First Nations under Treaty 8 in northeast British Columbia had been infringed upon by the cumulative impacts of industrial developments, including those in forestry, oil and gas, renewable energy and agriculture, within its traditional territory.

This decision could potentially increase regulatory risks for new infrastructure projects in that province and extend out to other provinces in Canada where similar claims could be made.