Duty to Consult
In the Haida and Taku River decisions in 2004, and the Mikisew Cree decision in 2005, the Supreme Court of Canada held that the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights.
The Government of Prince Edward Island recognizes it has a duty to consult in a meaningful way with the Mi’kmaq of PEI and is committed to making decisions in a manner that is consistent with the recognition and affirmation of existing Aboriginal and Treaty rights in Section 35 of the Constitution Act, 1982; and, within the legal parameters established by the Supreme Court of Canada concerning the duty to consult.
What is the role of the Aboriginal Affairs Secretariat in the consultation process?
The Aboriginal Affairs Secretariat (AAS) is responsible for providing all provincial government direction related to consultation with the Mi’kmaq of PEI. AAS provides policy leadership, guidance and advice to government departments and proponents regarding the duty to consult with the Mi’kmaq of PEI, and the process they should undertake to fulfil consultation obligations.
The role of AAS regarding consultation issues includes the following:
- Coordinate provincial policy issues for consultation, including development of broad, long-term policies, guidelines and departmental procedures;
- Build capacity and awareness within departments and agencies on how to undertake effective consultation with the Mi’kmaq;
- Provide advice to departments on consultation approaches and the implementation of this policy;
- Provide information to departments about Mi’kmaq processes, protocols and internal organization regarding consultation issues; and
- Provide advice on intergovernmental and cross-jurisdictional consultation issues where departments are involved.
AAS provides funding to the Mi’kmaq Confederacy of Prince Edward Island (MCPEI) to support the coordination and participation of the Abegweit and Lennox Island First Nations in consultation. In addition to core funding from AAS, individual departments may also provide funding for activities or studies to support department-specific consultations. Project proponents may also support participation by the Mi’kmaq of PEI in engagement and relationship-building efforts.
What is the role of provincial government departments?
Each department is responsible for working with the Aboriginal Affairs Secretariat to determine whether the duty to consult with the Mi’kmaq is triggered regarding their proposed decisions or actions. Accordingly, if the Province has real or constructive knowledge of a potential Mi’kmaq right, the Crown’s duty to consult will be engaged if the proposed decision or activity may adversely affect those rights. The degree of consultation will be proportionate to the strength of the claimed Mi’kmaq right and the potential for an adverse effect on those rights.
Departments may have different roles in the consultation process. The lead department is the department that has the broadest scope of authority for the proposed measure or action, and has statutory authority for the type of project under consideration. For complex, multi-phased projects, it is possible that the lead department may change from one department to another during the development of a project based on which department has the primary legislated authority at the time. All departments are considered to be “the Crown” for purposes of consultation.
Aboriginal Affairs Secretariat Office
Telephone: (902) 368-6895