Duty to consult

Ontario, as the Crown, has a legal obligation to consult with Aboriginal peoples where it contemplates decisions or actions that may adversely impact asserted or established Aboriginal or treaty rights. Ontario is committed to meeting its duty to consult with First Nations and Métis communities.

The duty to consult, and where appropriate accommodate, is rooted in:

  • the Honour of the Crown (a legal principle that commits government to act with integrity)
  • the protection of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982

The consultation process

The duty to consult has both information and response components. The Crown’s duty to consult can vary widely and depend on the circumstances. Factors that can influence the Crown’s consultation obligations include:

  • nature and scope of the established or asserted Aboriginal or treaty right
  • strength of the claim to an asserted Aboriginal or treaty right
  • potential impact of the proposed Crown conduct on the established or asserted right

When the Crown’s duty to consult is triggered, all parties are expected to participate in the consultation process in good faith (with sincere or honest intentions, regardless of the outcome or action).

Ontario’s role

Consultation generally involves:

  • providing timely and accessible information to the Aboriginal community on the proposed project, activity or decision
  • obtaining information on any potentially affected rights
  • listening to any concerns raised by the Aboriginal community
  • determining how to address these concerns, including attempting to avoid, minimize and/or mitigate adverse impacts on Aboriginal or treaty rights

The province’s approach to consultation is consistent with and responsive to evolving guidance provided in court decisions.

Role of Aboriginal communities

Meeting the Crown’s duty to consult requires a two-way flow of information between the Crown and Aboriginal peoples. The courts have stated that there is an onus on Aboriginal communities to:

  • make their concerns known
  • respond to ministries’ attempts to meet those concerns
  • attempt to reach some mutually satisfactory solution

Role of third parties

The Crown may delegate to a proponent certain aspects of consultation (e.g., to provide information regarding the proposal and gather information about the impact of a proposed project on potential or established Aboriginal or treaty rights). But the ultimate legal responsibility to meet the duty to consult lies with the Crown. Responsibilities of the third party will vary depending on a variety of factors including the nature of the consultation, the extent of consultation required in the circumstance and the procedural aspects of consultation the Crown has delegated to the third party.

Governments can - and have - outlined the expectations of third parties to carry out consultation in their plans and efforts.

Consultation review

The Ministry of Indigenous Relations and Reconciliation is currently reviewing how Ontario consults with Aboriginal communities. A dedicated team is leading this review and is working closely with:

  • First Nations
  • Métis
  • industry representatives
  • municipal representatives

Together, we hope to identify opportunities to improve the current policies, guidelines, processes and practices.

Themes so far

We’ve heard a variety of perspectives that often fall into one of these common themes:

  • the importance of strong relationships
  • the need for appropriate tools and capacity support for Aboriginal communities and proponents
  • the need for more clarity, transparency and consistency in consultation processes

Join the conversation

Tell us your thoughts about the current consultation process and your ideas to improve it.

Send us an email at dutytoconsult@ontario.ca and include:

  • some of the challenges or issues you`ve faced during a consultation
  • your experiences before, during or after a consultation process
  • your name
  • the community, industry or organization you represent (if applicable)
  • any questions, comments or suggestions

We will report back on what we heard during the consultation by fall 2017.