DUTY TO CONSULT AND ACCOMMODATE
Since it was first articulated by the Supreme Court of Canada in 2004, the law on the duty to consult and, if appropriate, accommodate claimed and established Aboriginal and Treaty rights has helped to promote the economic development of Aboriginal lands and communities. The duty means that federal and provincial governments must take the potential existence of Aboriginal rights, title, and/or historic or modern Treaty rights into account before making decisions about the use of lands and resources. Properly discharging this duty calls upon federal and provincial governments to work with Indigenous groups and Industry to discuss the parties’ respective interests in land and their shared interests, if any, in developing it. This has given many Indigenous groups a powerful voice in the economic development of Canada, and to develop tangible economic benefits for their communities. For other groups, the duty has enabled them to protect their lands from any economic development at all.
In short, the duty to consult is an effective tool for protecting Indigenous ways of life and distinctive cultures in a way that can also build relationships among Indigenous peoples, federal and provincial governments, and Industry.
Westaway Law Group has experience with all aspects of negotiation between Indigenous entities, government and industry entities. We also provide advice – in certain circumstances – to industry and government on effective economic development with Indigenous entities.
We can help Indigenous entities with:
- Legal advice to assist with the development (and protection) of business opportunities on reserve or in areas subject to Aboriginal rights, title, or Treaty claims.
- Legal and strategic advice on negotiation strategies relating to consultation protocols, Economic Benefit Agreements in relation to particular development projects, or broader relationship agreements with governments or Industry aimed at least in part at managing Aboriginal and Treaty Rights through consultation, such as Strategic Engagement Agreements, Reconciliation Protocols, Incremental Treaty Agreements, or Sectoral Agreements.
- Legal advice on governance matters, which can help to position Indigenous entities to participate in negotiations and better control the development of their lands.
- Claims that a duty to consult and/or accommodate has been triggered in the context of particular development projects.
> Haida Nation v British Columbia (Minister of Forests),  3 SCR 511 (SCC)
> Taku River Tlingit First Nation v British Columbia (Project Assessment Director),  3 SCR 550
> Rio Tinto Alcan v Carrier Sekani Tribal Council, 2010 SCC 43 (SCC)
> Beckman v Little Salmon/Carmacks First Nation,  SCC 53
> Tsilhqot’in Nation v. British Columbia,  2 S.C.R. 256 (SCC)
> Mikisew Cree First Nation v. Canada (Governor General in Council),  2 S.C.R. 765