4 – The Duty to Consult and Accommodate

• The duty to consult and accommodate is a legal obligation required to protect the rights of Indigenous People under section 35 of the Constitution Act, 1982, which is the supreme law of Canada.
• Canada has a legal duty to consult and accommodate Indigenous people on any decisions or actions that may impact established Indigenous or Treaty rights.
• Section 35 of the Constitution Act, 1982, “recognizes and affirms” the “existing” Indigenous and Treaty rights in Canada.
• A consultation is required between the government or it’s constitutes, and the appropriate Indigenous communities when there is potential for any action or decision to impact Indigenous or Treaty rights.
• For appropriate consultation to occur, the government or its constituents also have a duty to accommodate, meaning it is not enough to simply inform an Indigenous group of an action that will potentially impact an established right. Accommodation involves ongoing correspondence and/or actions that are required to reach a resolution between both parties involved.
• Consultation is a Nation-to-Nation relationship and responsibility.

All parties involved in a consultation must act in good faith and accommodate Indigenous communities in the consultation, meaning; the government (or those acting on it’s behalf) will provide accessible and sufficient information on any potentially impacted right in a timely matter, listen to concerns, and address concerns in a manner that is satisfactory to both parties (meaning avoiding, or mitigating) to reduce or eliminate the impact to Indigenous or Treaty rights.