APPENDIX B-1:
CANADIAN COURT G UIDANCE ON CONSULTATION
The Duty of the Crown
Crown has a “duty to consult” based on the “honor of the Crown”.
Consultation Principles
Crown must consult in good faith.
Crown must have intention to substantially address First Nation concerns.
Consultation must be meaningful.
Procedural Issues
Crown must provide necessary information.
Information must be provided in a timely way.
Accommodation
Crown must explore options to resolve First Nation concerns.
Crown must modify proposal to address First Nation concerns
Compensation must be provided in event of significant residual impact
Aboriginal Obligations
Consultation Is a two-way street with an obligation on the First Nation to also
participate in good faith
Aboriginal people must not frustrate the consultation process
Aboriginal people do not have a veto
Third Party Obligations
Third Parties have no duty to consult, but have strong interest
Crown may delegate procedural aspects of consultation to industry proponents
(e.g. environmental assessments)
Role of Project Developers
It is now clear that it is the responsibility of the Crown, and not third parties, to
initiate consultation and to discharge the duty to consult to the required degree. In
practice, however, it is common for the Crown to delegate some of the
responsibility to fulfill the duty to resource developers, or to require resource
developers to consult as part of the regulatory process. As the project proponent is
often the best source of information, First Nations and the Crown often prefer the
proponent to be involved in the consultation process.