Crown Aboriginal Consultations

The Manitoba government recognizes it has a duty to consult in a meaningful way with First Nations, Métis communities and other Aboriginal communities when any proposed provincial law, regulation, decision or action may infringe upon or adversely affect the exercise of a treaty or Aboriginal right of that First Nation, Métis community or other Aboriginal community.

Background

Subsection 35(1) of the Constitution Act, 1982, provides that the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.  Subsection 35 (2) defines the Aboriginal peoples of Canada as including First Nation, Inuit and Métis peoples of Canada.

Canadian courts, including the Supreme Court of Canada, have made judgments clarifying the meaning of Section 35. One element of these judgments, in simple terms, is that governments are required to consult with First Nations, Métis communities and other Aboriginal communities about any action or decision (including enacting a law or regulation) that might adversely affect the exercise of a treaty or Aboriginal right, before taking that action or making that decision. The goal of any consultation process is to provide a forum where concerns can be raised with government before a final decision is made.

Government must also reasonably accommodate concerns about the effects of the decision or action raised in the consultation process, by attempting to address those concerns. This duty of consultation and accommodation arises out of the principle of the "honour of the Crown." The Crown (Government) is to act honourably and in good faith in its relationships with Aboriginal peoples.

One of the main objectives of the Crown-Aboriginal relationship is to further the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.

Manitoba’s Crown- Aboriginal Consultation Process

The Agreements Management and Aboriginal Consultation (AMAC) Branch serves as Manitoba’s primary coordinating body for Crown-Aboriginal consultations relating to major or complex projects across the province. Manitoba’s Crown- Aboriginal consultation process is outlined in its Interim Provincial Policy for Crown Consultations with First Nations, Métis Communities and Other Aboriginal Communities (2009). The interim policy is a reflection and recognition of Section 35 of the Constitution Act, 1982 and the case law that has developed in this area.

Manitoba recognizes that assistance may be required for a community to be able to meaningfully participate in the consultation process. Manitoba has a Crown-Aboriginal Consultation Participation Fund available to assist communities with the cost of consultation.

Manitoba government departments can access the Crown-Aboriginal Consultation Participation Fund on behalf of affected communities. Prior to any funding being issued, a funding agreement is required between the department and the affected community.