Aboriginal and Treaty Rights
Government duties to protect Aboriginal Rights by involving them in decisions.
Aboriginal and treaty rights are protected by the highest law of the land (the Constitution) and international law. This means that both governments (federal and provincial) must fulfil their legal obligations to respect and protect the rights of Aboriginal peoples.
Governments must take several steps to adequately consult with Aboriginal peoples on how to protect their Aboriginal and Treaty Rights:
Notify the Aboriginal people affected about the decision being considered that might affect rights
Inform Aboriginal people and answer questions about the proposed project or decision
Include Aboriginal people in the design of the consultation process
Fund Aboriginal participation in the consultation process
Allow time for Aboriginal people to study the issue and prepare a response
Receive the information and views of Aboriginal people about how the government should decide the matter in a way that protects Aboriginal and treaty rights
Treat Aboriginal views and rights seriously in deciding an issue and this sometimes means seeking consensus or consent.
Above all, the Governments must listen to Aboriginal peoples and correctly identify which specific Aboriginal and Treaty rights may be affected by a proposed government decision and make any adjustments necessary to « accommodate » these rights.
Under the Constitution of Canada, this government obligation to Aboriginal peoples is called « the duty to consult and accommodate ». In several important court decisions, judges have described when this duty exist and what the Government must do to meet this duty when it arises. The first court decision mentioning the Government’s duty to consult Aboriginal peoples was the 1982 Sparrow decision. Since then, there have been many others. Two of the most important cases about the Government’s duty to consult were decided in 2004 by the Supreme Court of Canada-Haida Nation and Taku River First Nation.
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