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Before the Crown approves a project that could affect Aboriginal or treaty rights, it may have to consult with the Indigenous communities affected. This duty comes from the Supreme Court of Canada’s 2004 Haida Nation decision and shapes how energy and mining projects are permitted in Alberta.
Who owes the duty
The duty belongs to the Crown, federal or provincial. Companies do not owe the constitutional duty themselves, but the Crown often relies on proponents to carry out the practical parts of consultation, such as sharing information and responding to concerns. A weak record can delay or endanger an approval.
The depth of consultation depends on the strength of the claim and how seriously the project could affect it.
How Alberta manages it
In Alberta, the province’s Aboriginal Consultation Office manages consultation for provincial approvals. It decides whether consultation is required, sets out its scope and assesses whether it has been adequate, and proponents are expected to follow its directions.
Projects with federal approvals can involve separate federal consultation processes as well.
Practical advice for proponents
Start early, keep clear records of what was shared and how concerns were addressed, and treat consultation as relationship-building rather than a checklist. Agreements that share benefits with communities are increasingly common, but they do not replace the Crown’s duty.
Building a consultation record
- Keep a dated log of information shared, meetings held and concerns raised.
- Show what changed in the project in response to concerns.
- Follow the direction of the Aboriginal Consultation Office on scope and steps.
- Do not treat a benefits agreement as a substitute for the Crown’s duty.