Municipal Governments and the Crown’s ‘Duty to Consult’

Ontario’s municipal governments, Indigenous governments and local industry need clarity about the province’s approach to the ‘Duty to Consult’ and the corresponding ‘Duty to Accommodate,’ where appropriate. These duties come from a constitutional Crown obligation to consult Indigenous people on decisions that may affect Aboriginal and Treaty rights. At the same time, municipal governments want to strengthen and develop mutually beneficial relations with the Indigenous governments in their areas. Clear and pragmatic direction from the provincial Crown is necessary to facilitate these relations on the ground.

Shifting and siloed provincial approaches, judicial developments and ambiguity about implementation result in confusion about the municipal role in the Crown’s Duty to Consult. In some cases, the lack of provincial clarity and supports has strained relations between municipal governments and Indigenous governments. Confusion around the Duty to Consult can also lead to municipal project delays and cost overruns. This creates administrative burden for municipal governments while increasing pressure on the property tax base.

To address these challenges, Municipal Governments and the Crown’s ‘Duty to Consult’: Towards a Process that Works for Local Communities explores the Crown’s Duty to Consult as it relates to municipal governments. It aims to start a productive conversation between the provincial Crown, Indigenous and municipal governments about the municipal role in these constitutional processes. In doing so, it emphasizes the need for provincial leadership, including an ongoing role for the provincial Crown in Duty to Consult cases involving third parties like municipal governments.

The discussion paper is based on the view that while municipal governments may have a role to play in discharging procedural aspects of the Crown’s Duty to Consult, they do not have an independent Duty to Consult. Municipalities are not the Crown. They do not have the constitutional authority to address the range of issues arising from Aboriginal and Treaty rights. Municipal governments are subject to many provincial approval processes and do not have access to critically relevant information on Crown-Indigenous relations. Moreover, a lack of knowledge, capacity and financial resources to fulfill the Duty also prevent municipal governments from independently assuming responsibility for discharging this Crown responsibility.