Duty to Consult and Accommodate

The Duty to Consult and Accommodate is Canada's common-law duty to consult Indigenous groups, and where appropriate to accommodate them, when the Crown contemplates conduct that could adversely affect potential or established Aboriginal or treaty rights. It is based on section 35 of the Constitution Act, 1982 and on judicial interpretation of the Crown's obligations to Indigenous peoples.

The duty is a legal obligation, not a procurement preference. The Government of Canada's Buyer's Portal states that all federal departments and agencies are required to comply with it, and it directs buyers and clients to account for the duty at the planning stage of a procurement. Details are on the CanadaBuys page on the duty to consult and accommodate Indigenous groups.

What triggers the duty to consult

The duty belongs to the Crown. It applies to governments and their departments or agencies when they exercise Crown conduct. Housing, Infrastructure and Communities Canada identifies three elements that trigger it:

• the Crown contemplates conduct;
• the Crown has real or constructive knowledge of potential or established Aboriginal or treaty rights; and
• the conduct may adversely affect those rights.

Consultation is more than sharing information. Where appropriate, accommodation can require changes to a project or mitigation measures that address the potential adverse effects. The recipient guide on Indigenous consultation sets out these elements in detail.

How the duty reaches federal procurement

A procurement can engage the duty when the acquisition, or the activity it supports, could adversely affect Aboriginal or treaty rights. That can include construction, real-property activity or project funding tied to a contract.

National Defence lists the activities that can trigger the duty. They are military operations, exercises conducted off base, real-property transactions, construction, demolition, environmental remediation and procurement. The list appears in the department's infrastructure and environment disclosure. DND's materiel acquisition and support directive also requires these activities to meet Canada's legal obligations to Indigenous peoples, including consultation.

Funded projects and accommodation measures

Federal funding for a project can itself be Crown conduct that triggers the duty. Where consultation requirements apply, funding may be conditional on the duty being fulfilled. The Crown keeps the duty, but funding recipients may be required to carry out procedural aspects of consultation or to implement accommodation measures.

Examples of accommodation measures include changing operating schedules, reducing noise, conducting traditional-knowledge studies and modifying the project. Housing, Infrastructure and Communities Canada describes them in its applicant guide and in the recipient guide cited above.

Link to the Policy on Social Procurement

Public Services and Procurement Canada's Policy on Social Procurement excludes certain procurements from its application when they relate to projects for which there was a duty to consult Indigenous peoples. The exclusion does not apply if the appropriate local Indigenous representatives have given free, prior and informed consent in writing to applying the policy. The wording is in the Policy on Social Procurement.

What it means for a supplier bidding on Canadian public contracts

The legal duty stays with the Crown. A solicitation or contract may still contain project-specific Indigenous consultation, engagement, mitigation, reporting or accommodation requirements. Where the procurement documents assign procedural responsibilities to the contractor, the supplier must meet them as written.

Bid teams should read the solicitation for these requirements before pricing and scheduling. Accommodation measures such as altered operating schedules or noise reduction can affect work plans. For construction, remediation and real-property work, check whether the contract references consultation obligations or the Social Procurement Policy exclusion.