Role of Project Developers
Appendix B-1 presents summary information on Canadian Court guidance with respect to
these issues.
2.2.2
Meaningful Consultation
The nature of the Crown’s duty to ensure that meaningful and fair consultation takes place
has been clarified both in modern treaties and in Court guidance on numbered treaties.
Modern Treaties specifically addresses the extent and nature, as well as the limits, of
consultation obligations in relation to land and resource projects on Crown land, in
circumstances where those projects may have an impact on First Nation residents, lands
or interests. They define the requirements of meaningful consultation to include:
notice of a matter to be decided;
sufficient information in respect of the matter to permit the party to prepare its
views on the matter,
a reasonable period of time to permit the party to prepare its views on the matter,
an opportunity for the party to present its views on the matter, and
a full and fair consideration of any views on the matter presented by the Party.
The Court’s interpretation, as evidenced in its ruling in Halfway River, is bringing
significant convergent on the issue of meaningful consultation in both modern and
numbered treaties. It is clear from the ruling in Halfway River that meaningful
consultation now must involve a process that:
“….ensure that aboriginal peoples are provided with all necessary information
in a timely way so that they have an opportunity to express their interests and
concerns, and to ensure that their representations are seriously considered
and, whenever, possible, demonstrably integrated into the proposed plan of
action.” (emphasis added)
2.2.3
International Guidance on Consultation
Indigenous Peoples are recognized by international law and institutions as distinct, selfdetermining peoples with inherent collective rights. They claim special rights, which
include the right to free, prior and informed consent (FPIC) and the right of selfdetermination. These rights and principles are reflected in international human rights law
and in the laws of some states.