Almost every modern treaty includes specific obligations to consult in certain circumstances as well as a definition of what such consultation will involve. The Crown also has a duty to consult under the common law whenever they are considering actions that could adversely affect a modern treaty holder’s rights.

But what is consultation? Let’s use an example:

Imagine that the federal Crown is considering introducing restrictions on harvesting of certain fish species in order to conserve declining fish stocks, but one of these species is part of an important cultural ceremony for a modern treaty people. Here’s a step-by-step example demonstrating how the consultation process could unfold:

1. The Crown approaches the modern treaty organization well in advance of any action related to the proposed activity to tell them what they wish to consult about and explain it thoroughly. “We are considering restricting fishing of this species in order to conserve stocks.”
2. The modern treaty organization is provided with all related information, and given an appropriate amount of time to consider what is being proposed. The time required varies with the complexity of the activity. “Here are the files that document the decline in fish stocks, and that outline our plan and the reasons why we have chosen this approach.”
3. It may be necessary for the Crown to provide financial and/or other resources to the modern treaty organization so that they can thoroughly research and assess the situation and come to a full understanding. “There is some funding available for you to hire outside professionals who can help you analyse the information and formulate a response.”
4. The modern treaty organization provides their response to the Crown. “We understand the need for a restriction on fish harvesting, but one of these species is used in an important cultural ceremony that must be observed yearly. We require an exception to the restrictions on that species for that ceremony only.”
5. The Crown receives the modern treaty organization’s response and is obliged to make a reasonable accommodation. This means that in some cases policies may have to be changed and timelines altered to accommodate the concerns raised. “Thank you for your response, we will institute the restrictions as described, with the addition of the exception you proposed.”

The fundamental point to note here is that modern treaty provisions must be followed (it’s not optional), and consultation must be meaningful.

When Consultation is not enough

Consultation is required when there is a potential negative impact on modern treaty holders, such as the situation described above. But in situations where the Crown is actually breaching the agreement consultation is not enough. In such situations, the Crown may only be able to proceed with its planned action if it first obtains the consent of the modern treaty signatory. Depending on the context of the situation, the example we’ve provided here could be a breach of a modern treaty, requiring such consent, rather than consultation.