DUTY TO CONSULT

 

The Duty of the Crown to Consult and Accommodate

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.

engage

To engage the Métis Nation of Ontario (“MNO”) Regional Consultation Protocols, governments and proponents are asked to send consultation information, requests or notices in writing to:

Métis Consultation Unit

Métis Nation of Ontario Head Office

 

Suite 1100 – 66 Slater Street Ottawa,

ON K1P 5H1

Phone: 613-798-1488

Toll free: 1-800-263-4889

Fax: 613-722-4225

 

The MNO Head Office will ensure the information, request or notice is sent to the Chair and Committee members of the appropriate Regional Consultation Protocol for their review, assessment and response. This model will ensure all consultation requests are logged, responded to in a timely manner and tracked. However, all responses and follow up engagement will be with the appropriate Regional Consultation Committee. If you have any questions or require additional information about the MNO’s consultation process please feel free to contact the MNO’s Director of Intergovernmental Affairs and Relationships at

(613) 798-1488 or visit the MNO’s website.

 
 

What has the MNO done in response to the Crown’s Duty to Consult and Accommodate?


In early 2008, the MNO undertook province-wide community consultations on the Crown’s duty to consult and accommodate. The resulting ‘What We Heard’ report outlined the input received from Métis citizens, and made a series of related recommendations. One of the recommendations was for the MNO to work with its Community Councils to put Regional Consultation Protocols in place as a way of helping to ensure the Crown fulfills its duty to regional rights-bearing Métis communities. In November 2008, the MNO Annual General Assembly/Special President’s Meeting endorsed the report and its recommendations, which included a plan for the signing of Regional Consultation Protocols throughout the province.




What are Regional Consultation Protocols?


Consultation Protocols set out how regional rights-bearing Métis communities in Ontario want the Crown’s duty to consult and accommodate to be fulfilled. Because the Crown’s duty is new, the MNO’s existing governance structures did not yet include a mechanism for addressing this new constitutional duty. The Consultation Protocols do this, including to whom government and industry should talk, who does what, how Community Councils can work together, etc.




Why are the Protocols regional?


Métis ommunities are not limited to small dots on a map or individual villages, towns or cities. Historically, were mobile and continue to be. As a result, Métis communities span large regional territories. All Aboriginal rights are collective rights and Métis rights are Aboriginal rights. Métis rights do not belong to one family, a few individuals or one Community Council. The right is held by the regional rights-bearing Métis community and all members of the community have the right to exercise and benefit from the collective’s right, and be consulted when this right is potentially affected. Therefore, a regional consultation approach is required. A regional approach ensures that Métis citizens who may not currently be represented by a MNO Community Council, but who have an equal right to be consulted as a member of the regional rights-bearing Métis community, also have an opportunity to participate and become engaged in consultation and accommodation processes.




Who makes decisions under the Protocol?


The Protocols ensure that all decision-making remains at the community level and encourages a consensus based approach. The Community Council Presidents from the region and the Regional Councillor sit on the Committee. These individuals are democratically elected, report back to MNO citizens and are ultimately accountable to the regional rights-bearing Métis community through the MNO’s governance structures. The MNO’s Natural Resources, Environment and Community Relations Branch provides support and assists the Committees in getting the legal, technical and environmental expertise they need, however ultimate decision-making lies at the community level.




Why are these Protocols important?


These Protocols set out a clear roadmap for government and industry about how to engage Métis in effective, transparent and predictable consultation. The Protocols will help to stop potential situations where a few Métis individuals, one Métis family or an incorporated “Métis group” claims to consult, negotiate or secure personal benefits in the name of the regional rights-bearing Métis community.





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