The Duty to Consult: What Proponents Get Wrong — and How to Fix It

Canada’s duty to consult is one of the most cited and least understood obligations in Indigenous relations. For every proponent that approaches it thoughtfully, there are several more who treat it as a procedural hurdle — a series of notifications to issue and meetings to log before a project can proceed. That misunderstanding is expensive. Projects stall, relationships break down, and legal challenges follow.

Here is what we consistently see proponents get wrong, and what a better approach looks like.

Confusing Notification with Consultation

The most common mistake is conflating information-sharing with consultation. Sending a Nation a project summary and requesting a meeting is not consultation. Consultation requires a genuine opportunity for the Nation to raise concerns, have those concerns understood, and see them reflected in project decisions. If a proponent’s project design is unchanged from beginning to end of an engagement process, that is a sign that consultation was not actually happening.

Starting Too Late

Engaging a Nation after a project has been designed, scoped, and partially permitted is not early engagement — regardless of what the project schedule says. At that point, the decisions that matter most have already been made. Nations know this, and they respond accordingly. Meaningful engagement happens when Nations can still shape the outcome: before alignment is chosen, before environmental studies are designed, before timelines are set.

Underestimating What Capacity Actually Requires

Nations are routinely asked to review thousands of pages of technical documentation, participate in multiple workstreams simultaneously, coordinate Elders and Knowledge Holders, and provide formal responses — all within timelines set by a proponent’s project schedule. Without meaningful capacity funding and reasonable timelines, this is not a fair process. Proponents who fund Nation capacity adequately get better engagement, fewer delays, and more durable relationships.

Treating Consultation as a Crown Responsibility Alone

The Crown bears the constitutional duty to consult, but proponents carry significant practical and reputational obligations of their own. Courts have made clear that proponents who rely entirely on Crown-led processes — without building their own Nation relationships — take on risk. The projects that succeed are those where the proponent invests in the relationship independently, not because they are required to, but because they understand what is at stake.

What Better Looks Like

The proponents who get this right share a few things in common. They start early and stay consistent. They fund Nation capacity without being asked. They bring decision-makers to the table, not just communications staff. They respond formally and in writing to issues raised. And they treat accommodation as a legitimate project cost rather than an exception.

Opawamow Group works with proponents and Nations at every stage of the consultation process — from engagement planning and capacity funding design to rights review support and formal submissions. If your project is approaching a Nation engagement process, we can help you do it right from the start.