Consulting Indigenous Peoples

The Government of Canada has statutory, contractual and common law obligations to consult with Indigenous peoples. The duty to consult is based on judicial interpretation of the obligations of the Crown in relation to section 35 of the Constitution Act, 1982, and stems from the Honour of the Crown and the unique relationship between the Crown and Indigenous peoples.

The Crown has a duty to consult and, where appropriate, accommodate when it contemplates conduct that might adversely impact established or potential Aboriginal and/or treaty rights.

Infrastructure Canada funding for infrastructure projects is contingent upon Canada fulfilling the constitutional duty to consult and, where appropriate, accommodate Indigenous peoples.

Duty to consult and, where appropriate, accommodate Indigenous peoples

When the Crown contemplates decisions or actions – including the funding of infrastructure projects – that might adversely impact potential or established Aboriginal and/or treaty rights, it must fulfill the constitutional duty to consult and, where appropriate, accommodate Indigenous peoples. Potential adverse impacts include disruption to Indigenous fishing, hunting and gathering activities, as well as disturbance to cultural and archeological resources.

Infrastructure Canada's approach to consulting Indigenous peoples is informed by the guidelines for federal officials developed by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC).

Infrastructure Canada’s Approach

To the extent possible, Infrastructure Canada relies on existing government processes or prior Indigenous engagement efforts of funding applicants to assist the department in fulfilling the duty to consult and, where applicable, accommodate Indigenous peoples. For example, if there are existing or planned consultation processes led by funding applicants such as Provinces and Territories, or by Regulatory Agencies (e.g. Fisheries and Oceans Canada), Infrastructure Canada will rely on these processes to the extent possible.

If there are no existing processes, ultimate funding recipients of Infrastructure Canada funding could be asked to undertake or participate in Indigenous engagement and consultation activities or, in specific circumstances, Infrastructure Canada may coordinate and lead Canada's Crown-Indigenous consultation process.

Guidance for Ultimate Funding Recipients

Infrastructure Canada reviews project information and considers whether a project may cause changes to the environment that could adversely impact established and/or potential Aboriginal and/or treaty rights.

To determine which Indigenous communities may potentially be adversely impacted by a project and should be consulted, Infrastructure Canada uses the federal Aboriginal and Treaty Rights Information System (ATRIS) – a web-based geographic information system that locates Indigenous nations, communities, and organizations – and displays information pertaining to their established and/or potential Aboriginal or treaty rights.

Once a project is approved in principle, Infrastructure Canada informs the ultimate funding recipients of the department's constitutional duty to consult and, where appropriate, accommodate Indigenous peoples. When adverse impacts are anticipated, Infrastructure Canada may ask ultimate funding recipients to:

• Inform potentially impacted Indigenous peoples of the project and of Infrastructure Canada's funding;
• Provide Indigenous peoples an opportunity to share their concerns about potential adverse impacts on Aboriginal and/or treaty rights;
• Determine, where appropriate, how the project can be modified to address concerns, limit or avoid identified adverse impacts (or provide a reasonable explanation as to why some concerns cannot be addressed); and
• Ensure identified mitigation and/or accommodation measures are implemented and keep Indigenous peoples informed of developments.

In order for Indigenous consultation to be meaningful, it must be:

• Carried out in a timely, efficient and responsive manner;
• Transparent and predictable;
• Accessible, reasonable, flexible and fair;
• Founded on the principles of good faith, respect and reciprocal responsibility; and
• Respectful of the uniqueness of First Nation, Métis, and Inuit communities.

Guiding principles

Infrastructure Canada encourages funding applicants to engage with Indigenous peoples early in project planning and design.

Early engagement with Indigenous communities and organizations:

• provides the opportunity to start or further develop relationships with Indigenous peoples and can help build trust and respect;
• offers potential funding applicants an opportunity to consider concerns and answer questions prior to submitting their application for funding, creating a more efficient, timely and streamlined approval process;
• provides funding applicants with an idea of the scope and potential cost of Indigenous consultation activities.

Meaningful consultation includes accommodating Indigenous peoples, when it is determined that the project may have an adverse impact on potential or established Aboriginal and treaty rights. Therefore, ultimate funding recipients should be prepared to implement accommodation measures and make changes to the project to eliminate or reduce adverse impacts, if consultation reveals that accommodation of Indigenous peoples is necessary. Accommodation measures include:

• Alignment of a project's operating schedules with Indigenous community practices;
• Modification of the design of a project to avoid an area of interest;
• Restoration of the environment (planting trees, creating a wetland, etc.);
• Financial compensation to redress the harm caused.

Funding Indigenous Consultation

Ultimate funding recipients may need to provide capacity funding to Indigenous communities and organizations to allow them to meaningfully participate in consultation activities. Indigenous consultation and accommodation costs incurred by the ultimate funding recipients are eligible for reimbursement. Ultimate funding recipients are encouraged to plan the scope and potential cost of Indigenous consultation activities in advance.

Eligible expenses may include, but are not limited to:

• Professional fees/consultation fees;
• Travel expenses;
• Hospitality expenses;
• Honoraria for Elders and Chiefs to attend meetings;
• Ceremonial offerings related to environmental assessments and Indigenous consultation;
• Other expenses related to local collection/distribution of information;
• Rental of office space/meeting rooms;
• General media advertising/promotion;
• Purchase of information material;
• Other relevant consultation capacity building.

For additional information, please contact:
aboriginalconsultenv-consultautochtonesenv@infc.gc.ca.

Useful links

• Infrastructure Canada Funding Programs
• Government of Canada and the duty to consult and, where appropriate, accommodate Indigenous peoples
• Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011)
• Consultation and Accommodation Advice for Proponents
• Aboriginal and Treaty Rights Information System (ATRIS) search