In 2004, in the Haida and Taku cases, the Supreme Court of Canada set out a new legal framework – the Crown’s duty to consult and accommodate. This duty flows from the honour of the Crown and s. 35 of the Constitution Act, 1982. This new duty requires governments to consult Indian, Inuit and Métis peoples and accommodate their interests whenever a Crown actor considers conduct that might adversely affect Aboriginal rights or interests.
The duty applies when the Crown has real or constructive knowledge of the potential existence of Aboriginal rights or title that may be at risk from a course of action being contemplated by a Crown. The duty demands that all governments work with Aboriginal peoples to understand their interests and concerns prior to authorizing or proceeding with a plan, policy, development or activity that has the potential to affect Aboriginal rights. The purpose of the duty is achieved when government addresses, modifies or reconciles its actions with Aboriginal interests in a real and substantive way.
Overall, the duty is designed to promote the transformation of the existing relationship between the Crown and Indian, Inuit and Métis peoples to a new relationship based on consultation, accommodation, just settlements and reconciliation.
Duty of the Crown and Ontario Métis
Based on credible Métis rights assertions and claims throughout Ontario, the provincial government has accommodated Métis rights on a regional basis, within Métis harvesting territories identified by the Métis Nation of Ontario (“MNO”). This accommodation has been held to be legally enforceable by the Ontario Court of Justice in 2007 in R. v. Laurin.
In Métis traditional harvesting territories, the Crown’s duty to consult is triggered when it plans, undertakes or authorizes a policy, project or development that has the potential to affect the rights, interests or way of life of the regional Métis communities that rely on these territories. Industry may undertake procedural aspects of the Crown’s duty, but the duty itself remains solely with the Crown.
The MNO, in partnership with its Community Councils, has established a process to achieve effective consultation with Métis in Ontario. This process requires government or industry to provide written notice to the potentially affected regional rights-bearing Métis communities. Through established Regional Consultation Protocols, the MNO and its Community Councils will undertake an assessment of all consultation requests.
Following this, a response from the regional rights-bearing Métis community will be provided, identifying whether consultation is required, and, if so, how consultation should take place. It is at this point that a formal consultation process would begin.
Engaging Métis on the Duty
1. TRIGGER FOR CONSULTATION Government or a proponent identifies a plan, policy or project with the potential to impact Métis rights, interests or way of life in an area where a Regional Métis Consultation Protocol is in place.
2. NOTICE TO MÉTIS Notice is sent from government or the industry proponent to the Métis Consultation Unit c/o the MNO Head Office. Notice includes sufficient detail about the proposed plan, policy or project for a Regional Métis Consultation Committee to assess and determine consultation requirements.
3. ASSESSMENT BY MÉTIS The Regional Métis Consultation Committee, along with the MNO Natural Resources, Environment and Community Relations Branch, work together to assess the notice provided and to determine the level of consultation required.
4. MÉTIS RESPONSE The MNO’s Natural Resources, Environment and Community Relations Branch, on behalf of the Regional Métis Consultation Committee, provides a written response to the government or proponent, which outlines a conclusion on the initial assessment. This written response identifies whether additional information is needed, whether consultation is required, whether consultation will take place at the local or regional level and the Regional Métis Consultation Committee’s proposed next steps in order to begin formal consultations (i.e. arrange face-to-face meeting, capacity funding, etc.).
5. CONSULTATION STAGE Once the next steps identified in the Métis Regional Consultation Committee’s response are addressed, formal consultation with the Métis community will begin. Notice, assessment and the Métis response do not constitute consultation. They are preliminary steps designed to get to a fair, objective and transparent consultation process with the potentially affected rights-bearing Métis community.