Aba Wathtech

What is the Duty to Consult?

The duty to consult with Aboriginal Peoples is a legal and constitutional duty of both the federal and provincial governments.

The Crown alone is legally responsible for the consequences of its actions and interactions with third parties that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development but the honour of the Crown cannot be delegated.

The “Government of Alberta’s First Nation’s Consultation Policy on Land Management and Resource Development” (2013) outlines the Province’s expectations. Industry is expected (required) to engage in an open and respectful consultation process with First Nation Communities when proposed projects overlap with traditional territories. Resource developers should provide early notification to the appropriate First Nation communities, address their concerns and ensure that they are reasonably well informed about the proposed development. Further, the Province of Alberta recommends industry incorporate traditional use data and traditional ecological knowledge into the planning and operational phases of their projects. Most significantly, industry is expected to avoid infringing on Aboriginal rights and traditional uses. Where avoidance is not possible, industry is expected to make “reasonable efforts” at mitigating both anticipated and realized impacts.