Duty to Consult and Accommodate Aboriginal Peoples

The Duty to Consult and Accommodate is the Crown's legal obligation to consult Indigenous groups when its conduct may adversely affect potential or established Aboriginal or treaty rights. Where appropriate, the Crown must also accommodate those rights. The duty arises from the common law and from section 35 of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal and treaty rights.

The duty rests on the honour of the Crown. It is a government obligation, not a private one, and it applies to federal departments and agencies. They must assess whether a proposed action could adversely affect Indigenous rights and, where it could, carry out consultation and accommodation. The CanadaBuys Buyer's Portal sets out this obligation for federal buyers.

What triggers the duty

The duty applies when government conduct might adversely affect potential or established Aboriginal or treaty rights. The trigger is the Crown's own conduct and its possible effect on those rights. The duty is based on judicial interpretation of Canada's obligations concerning the existing rights that section 35 protects.

Because the duty covers potential rights as well as established ones, it can apply before a right has been formally proven or defined.

Who is bound by the duty

All federal departments and agencies are required to comply with the legal duty. The obligation stays with the Crown. A supplier that wins a federal contract does not take over the Crown's constitutional responsibility to consult.

Federal consultation work is also published more broadly. The Government of Canada keeps a consultations page that gives context on how engagement is organized across government.

How the duty enters procurement planning

CanadaBuys directs buyers and clients to consider their related responsibilities during the consultation process when they plan a procurement. In practice, a department has to ask early whether a planned purchase or project could affect Indigenous rights, and build any consultation into its schedule and approach.

CanadaBuys also hosts wider guidance on Indigenous considerations in procurement, including its page on the procurement strategy for Indigenous business. That topic is separate from the legal duty, but both sit under the same Indigenous considerations heading on the portal.

Example: High Frequency Rail

Transport Canada's High Frequency Rail project shows how the duty can shape a solicitation. The Government stated that its procurement and project-development approach would fulfill the Crown's duty to consult and accommodate. At the request-for-proposals stage, respondents were to describe how they would facilitate Indigenous participation in the project. The Transport Canada briefing lists the expected elements:

• contracting with Indigenous businesses, communities, entities and Peoples, including during construction and operation;
• creating socio-economic benefits;
• inviting Indigenous Peoples to share Indigenous knowledge; and
• providing opportunities to participate in the impact-assessment process.

What it means for a supplier

The Crown holds the duty, so a supplier is not responsible for conducting Crown consultation. What a supplier faces depends on the procurement. Major infrastructure and projects with potential impacts on Indigenous rights are the most likely to carry proposal, engagement, participation, contracting or impact-assessment requirements for proponents.

• Read each solicitation for Indigenous participation requirements, especially on large projects.
• Be ready to explain in your proposal how you would contract with Indigenous businesses and communities.
• Plan for engagement and knowledge-sharing activities if the buyer asks for them.
• Watch for consultation timelines that may affect when a solicitation is released or a project proceeds.