Duty to Consult, accommodate and consent for all activities in the territory:
The doctrine of the duty to consult and, where appropriate, accommodate Anishinaabe / Ininew (Indigenous) Peoples, was developed by the colonial courts of Canada in order to protect the existing Aboriginal and Treaty rights of Indigenous Peoples, as they are affirmed in the Constitution Act of 1982. This doctrine requires that all governments consult Anishinaabe / Ininew Nation before taking actions that they deem may negatively impact these rights. Consultation is expected to occur whenever the government has knowledge of “the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it.”
The scope of consultation and expectations of accommodation are based on a the policy set out by the Supreme Court of Canada in which the extent of infringement upon the rights of Indigenous communities guides the extent of government response and responsibility. Repercussions for failing to consult, similarly, operate on a spectrum with responses ranging from injunctions, to monetary compensation, to simply being required to carry out consultation.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that actions impacting Indigenous communities must not be taken without free, informed and prior consent. Notably, Article 19 of UNDRIP states that “states shall consult and cooperate in good faith with the Indigenous Peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” This requirement is rooted in a respect of Indigenous Peoples’ right to self-determination and sovereignty.
Legal frameworks for consultation and consent can provide critical means by which to assert Indigenous rights within the colonial institutions. Fighting for Anishinaabe / Ininew Nation, rights to self-determination and sovereignty is critical for the protection of the environment, the proper use of resources for all citizens in Anishinaabe / Ininew / Treaty 2 Territory and for reconciliation.
Grand Council – 23/24 August 2022 Kakakwekejeong
Documentation to Review and reference:
Last modified: July 28, 2022