Duty to consult and accommodate

In Canada, the duty to consult and accommodate with Indigenous Peoples arises when the Crown contemplates actions or decisions that may affect Aboriginal or Treaty rights.The broad purpose of the duty to consult and accommodate is to advance the objective of reconciliation of pre-existing Aboriginal societies with the assertion of Crown Sovereignty.[4] The obligation to provide consultation and a decision-making process that is compatible with the honour of the Crown is embedded in Section Thirty-five of the Constitution Act, 1982 and Treaties.The Court further stated that "a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity.Although in many provinces it is industry proponents that consult with Aboriginal rights holders, the ultimate substantive duty to ensure proper consultation and accommodation lies with the Crown; while procedural aspects can be delegated to other levels of government or to industry proponents, the honour of the Crown itself can never be delegated.There has been much litigation over the content of the rights in the Peace and Friendship Treaties negotiated in the Maritimes in the mid-eighteenth century, which culminated in the R. v. Marshall decisions.[10] The second factor required to give rise to a duty to consult and accommodate is that a government action or decision relating to land and/or natural resource management within the Indigenous group's traditional territory is contemplated.The third factor required to trigger a duty to consult and accommodate is that the government's decision has the potential to adversely impact the continued existence of a Treaty or Constitutional right.However, considering Canada's colonial history and persistent bias in support of resource extraction industries, it is worth recognizing that many things happen on the ground that are not in fact sanctioned by law.(raventrust.com/tarsandstrial) Other important factors to consider when determining the scope of the duty to consult and accommodate include the strength of the claim, the risk of non-compensable damage or infringement, the specificity of the promises made, the history of dealings between the Crown and the Aboriginal rights holders, competing interests, and whether the Crown will have control over future amendments to the project.[44] Where an Aboriginal community is limited in its resources to bring a claim before the courts, the duty goes unfulfilled for a failure of administrative architecture.[55] The issue is that this process can bury Aboriginal groups in letters from the potentially numerous, unrelated government departments involved in the project.Since Aboriginal bands lack any veto power in the consultation process, multiple projects in the same area may, over time, erode rights to such a point that they are meaningless.[60] First Nations are under an obligation not to frustrate the Crowns reasonable good faith attempts, nor to take unreasonable positions to thwart the government from making decisions where an agreement is not reached.As an example noted by Promislow,[62] in Upper Nicola Indian Band v British Columbia (Minister of Environment),[63] the BC Supreme Court held that, where the government contemplated construction of an electrical transmission line parallel to an older one, the impacts of the older line, constructed in the 1960s, were out of the scope of the duty in the current consultation process.
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