Sheila Bautz
Special to the Herald
The Government of Saskatchewan is legally obligated to follow what is known as the duty to consult doctrine, which was established to protect the Treaty rights of First Nations and Métis communities in Canadian provinces. As determined by the Supreme Court of Canada (SCC) in a series of rulings since 2004, before a government makes a decision that has the potential to impact Aboriginal or Treaty rights, they must consult with the Indigenous people in the community. This same rule applies and is legally binding for Crown corporations.
As of January 1, 2024, a revised First Nation and Métis Consultation Policy Framework (CPF) came into effect. The duty to consult law was determined as being owed to First Nations, Métis and Inuit people of Canada by the Crown. The predominant purpose for the duty to consult doctrine ensures that legal enforcement can be issued for the government to comply with the law and honour reconciliation efforts.
A key legal area, the duty to consult enforceable law is important for private businesses, private industry stakeholders, territorial governments, provincial governments and the federal government as well. The law is meant to rectify the historical imbalance of power between government and the First Nations, Métis and Inuit people in Canada. This in turn affects all individuals in Canadian society to establish equality and honour the Treaty rights owed to Indigenous people.
“The changes made to the CPF were built on the key themes we heard during our engagement process in the fall and winter of 2022,” former Government Relations Minister and Minister Responsible for First Nations, Métis and Northern Affairs Don McMorris said in December 2024. “We are committed to improving transparency and communications throughout the CPF process, toward greater capacity, and building stronger relationships between First Nation and Métis communities, industry and government.”
In Canada, His Majesty King Charles III represents, and is known as, The Crown. The Crown is the executive branch of the federal and provincial governments in Canada. The Crown also owns corporations, known as Crown Corporations, which provide essential services and utilities to the province’s public, such as SaskPower.
“His Majesty King Charles III showed his commitment to reconciliation in a meeting with Indigenous leaders,” Her Excellency the Right Honourable Mary Simon, Governor General of Canada, said in a statement. “The King understands the importance of walking the path of reconciliation with Canada and Indigenous peoples. Discussions like these are vital. They will start slowly, and grow, forming the pillars of a renewed relationship with Indigenous peoples that is based on respect and understanding.”
Governor General Simon is an Inuk on her mother’s side, making her the first Indigenous person to hold the prestigious office of Governor General of Canada. She is the 30th governor general since Confederation. She is responsible for sharing the messages of His Majesty King Charles III.
The most recent amendments to the duty to consult doctrine ensure a commitment from the Saskatchewan government to effectively and meaningfully fulfill the duty to consult stipulations. This includes the affirmation of Saskatchewan’s commitment to the province’s constitutional obligation to Aboriginal and Treaty rights.
The duty to consult is important for Treaty territories and reservations. It addresses issues that can arise when government or industries want permits and licenses issued, and regulatory project approvals. For example, when infrastructure plans that may damage natural forests, endanger the wildlife or violate existing Indigenous hunting rights may occur, Indigenous communities must have full disclosure from the government about the project. Projects must not begin without consultation with the Indigenous community that will be affected.
Recent amendments to the duty to consult also include economic reconciliation with Indigenous people. This improves the economic outcomes for First Nation and Métis people throughout the province. In addition, a revised Duty to Consult Assessment Chart has simplified and reduced the consultation process for simplicity and clarity purposes. Established timelines in the process for both Indigenous communities and the Saskatchewan government during the duty to consult process are also improved. Overall, the amendments to the duty to consult doctrine increase accountability and predictability for everyone involved in the process.
“I have often said that reconciliation is not one act, nor does it have an end date. It is a process we build on, piece by piece,” Her Excellency the Right Honourable Mary Simon, Governor General of Canada, said in a statement.
The history of the duty to consult doctrine stems from 1982. In 1982, The Constitution Act, Section 35, secured the guaranteed inherent rights of the First Nations, Métis and Inuit people of Canada. By the 2000s, the Canadian courts developed the doctrine of the duty to consult with a goal to protect the rights of Indigenous people.
In 2004 and 2005, in what is now called a trilogy of decisions, the Supreme Court of Canada (SCC) ruled on three specific Indigenous cases. The cases consisted of Haida Nation v. British Columbia (Minister of Forests) (Haida Nation); Taku River Tlingit First Nation v. British Columbia (Project Assessment Director); and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage).
This trilogy of court cases and the resulting judgments established the precedent for procedural protections that involved Aboriginal and existing treaty rights. The judgements from the SCC specified and clarified the Crown’s duty to consult with First Nations, Métis and Inuit people of Canada. They also formed the foundation for a generalized framework within the law to protect the rights of all Indigenous people.
As documented in legal rulings by the SCC, the highest court in Canada stated, “Rather than pitting Aboriginal peoples against the Crown in the litigation process, the duty recognizes that both must work together to reconcile their interests.”
There are also beneficial factors for industry or government entering Indigenous territory that will enhance and further liberate Indigenous people and their communities.
As stated by the Supreme Court of Canada (SCC) in their public ruling determining the rules for the doctrine, the duty to consult “arises when the Crown has knowledge, real or constructive, of the potential existence of Aboriginal right or title and contemplates conduct that might adversely affect it.”
When there are concerns from Indigenous communities, the industry or government must seek to modify their plans. Alternatively, they may abandon their project plans so as not to pose an illegal action on the part of the industry or government bodies involved. Additionally, Indigenous communities who do consent to projects should do so by their own free choice and not through being pressured into a legally binding agreement.
The Supreme Court has stated that the “honour of the Crown is always at stake in its dealings with Aboriginal peoples,” and that “the Crown must act with honour and integrity, avoiding even the appearance of ‘sharp dealing.’”
“[Reconciliation] is a path we must walk together, all of us—Indigenous, non-Indigenous, the Crown. And while we know words are important, it is through our actions that we can make the most difference,” said Her Excellency the Right Honourable Mary Simon, Governor General of Canada. “I will continue to encourage all Canadians, as well as the Crown, to take action on reconciliation.”
The Crown is always responsible for any consultations between the government and their Crown Corporation. The Crown must ensure that the Indigenous groups are well informed and that the consultations between their government officials and corporations are clear, concise, accurate, and adequate in communication with Indigenous communities.
