The duty to consult and accommodate is a constitutional obligation on the Crown to consult with and accommodate First Nations in relation to a wide range of government decisions which could affect rights recognized and affirmed under section 35 of the Constitution Act, 1982, including Aboriginal and treaty rights. The duty to consult and accommodate is a proactive duty which tries to prevent Crown conduct that could harm a section 35 right. It does not apply to past wrongs, but First Nations have other remedies for past wrongs outside of the duty to consult and accommodate.

The duty to consult and accommodate is rooted in the honour of the Crown. The honour of the Crown is a principle that arose from the Crown’s assertion of sovereignty over First Nations. It requires that the Crown act honourably in its dealings with First Nations. Courts repeatedly state that the honour of the Crown is always at stake when the Crown is dealing with First Nations. The honour of the Crown gives rise to different duties depending on the circumstances, one of which is the duty to consult and accommodate when the Crown contemplates conduct that may adversely affect a section 35 right.

The duty to consult and accommodate is a procedural right, which means it is a right that guarantees a process, not an outcome. It does not require a duty to agree, but it does require good-faith efforts to understand parties’ concerns and address them. Where a right is claimed (but not proven in court), First Nations do not have a veto power. Where a right has been proven, the Crown must generally seek consent from the First Nation.

The duty to consult and accommodate exists on a spectrum. The depth of Crown consultation and accommodation owed to a First Nation depends on the strength of the right asserted and how seriously the contemplated Crown conduct will adversely affect that right. A weaker claim—such as an unproven Aboriginal right that the Crown’s conduct will minimally affect—gives rise to minimal consultation, such as notice, disclosure of information, and discussion. A stronger claim, such as proven Aboriginal title, requires deep consultation with the objective of obtaining consent from the Nation for activities that would seriously impact its section 35 rights.

When the Crown informs a First Nation regarding contemplated conduct that may adversely affect its section 35 rights, both parties must engage in the consultation and accommodation process in good faith. The Crown must intend to substantially address the First Nation’s concerns and cannot engage in sharp dealings. The Crown is expected to meaningfully engage, while First Nations are required to facilitate consultation in good faith and not frustrate genuine efforts by the Crown.

First Nations have a cause of action under s. 35 of the Constitution Act, 1982 if the Crown fails to carry out its duty to consult and accommodate.

The Crown can justify an infringement on a s. 35 right, including the duty to consult. This requires the Crown to prove in Court that there was a s. 35 right which was interfered with, but that the infringement is justifiable because it relates to a compelling and substantial Crown objective, is proportionate to any adverse impact on a s. 35 right, and upholds the honour of the Crown. The stronger the right is, the more difficult it will be for the Crown to justify an infringement.

Free, prior, and informed consent (FPIC) is a principle similar to the duty to consult. It is an international law concept and comes from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). FPIC requires that states obtain the free, prior, and informed consent of Indigenous Nations before adopting measures which may adversely affect Indigenous rights. While Canada has adopted UNDRIP into Canadian law through the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c. 14, there has been Court decisions which discusses FPIC in the context of the duty to consult and accommodate. The Court stated that where an UNDRIP article explicitly requires FPIC, the Crown should engage in deep consultation with the affected nation. The Court did reiterate, however, that FPIC is not a veto power.