Ahead of the AFN Annual General Assembly: A Constitutional Proposal on Section 35 Consultation
- John Hawke
- Jul 12
- 3 min read
Sunday July 12, 2026
Request for Review – Draft AFN Resolution on Constitutional Consultation and Section 35
Dear Chiefs
My name is John Hawke. I am Atik Dodem (Caribou Clan), an Anishinaabe Treaty rights holder from Gchimnissing Anishinaabe Aki (Beausoleil First Nation) within the Williams Treaties.
I am writing to share, for your information and consideration, materials relating to a Federal Court proceeding I have commenced concerning the constitutional duty to consult under section 35 of the Constitution Act, 1982.
The motion raises broader questions about whether consultation processes affecting major development projects—including projects with significant environmental and long-term impacts on Indigenous lands and waters—are meaningfully engaging the Indigenous rights holders whose Treaty and Aboriginal rights may be affected.
I believe these issues are relevant to organizations working to advance Indigenous sovereignty, climate justice, environmental stewardship, and the protection of Indigenous rights. Attached are a brief overview of the matter together with my court materials, including my Notice of Motion, Memorandum of Fact and Law, and supporting documents.
I am not writing to ask your organization to take a position on the litigation. Rather, I hope these materials may be of interest given your work and mandate. If you have any comments, observations, or suggestions after reviewing them, I would sincerely welcome your feedback.
These proceedings concern the implementation of section 35 of the Constitution Act, 1982, the Honour of the Crown, the duty to consult and, where appropriate, accommodate, federal environmental legislation, and the approval of major projects affecting Treaty territories.
The following projects are within our projected lands where the Crown has failed its duty to consult where the following will harm our Treaty Rights and Treaty Territory.
Darlington New Nuclear Project Federal Court File No. T-2232-26 This proceeding seeks interlocutory relief concerning the continued construction of the Darlington New Nuclear Project pending determination of constitutional issues relating to consultation. The application raises questions regarding section 35 consultation obligations, regulatory approvals, environmental oversight, and whether major construction should continue while consultation and Indigenous rights issues remain unresolved.
Department of National Defence – Arctic Over-the Horizon Radar Project Federal Court File No. T-2719-26 This proceeding concerns the proposed Arctic Over-the-Horizon Radar Project in Treaty 18 territory. It raises issues regarding the Crown's constitutional duty to consult, potential impacts on harvesting rights, wetlands, species at risk, archaeological resources, and cumulative environmental effects before construction proceeds.
Tiny Township Administrative Centre and Wasaga Beach Provincial Park Lands Federal Court File No. T-1760-26 This proceeding seeks interlocutory relief relating to the proposed Tiny Township Administrative Centre and the transfer and proposed development of former Wasaga Beach Provincial Park lands. The application alleges failures to fulfill federal responsibilities under the Fisheries Act, the Species at Risk Act, the Migratory Birds Convention Act, and section 35 consultation obligations. It also raises concerns respecting endangered species habitat, fish habitat, shoreline ecosystems, Crown land disposition, and the absence of meaningful Crown-led consultation before development and land transfers proceeded.
Broader Constitutional Questions Collectively, these proceedings raise broader constitutional questions extending beyond the individual projects, including:
• implementation of the Crown's constitutional duty to consult before irreversible project decisions;
• protection of Aboriginal and Treaty rights under section 35;
• federal obligations under environmental legislation, including the Fisheries Act and Species at Risk Act; • whether consultation occurring after approvals satisfies constitutional obligations;
• the relationship between federal and provincial decision-making where both governments participate in projects affecting Treaty territories;
• protection of harvesting rights, environmental stewardship responsibilities, and culturally significant lands and waters.
I have also prepared a draft constitutional discussion paper entitled Honour of the Crown: Strengthening Constitutional Consultation Standards for Major Projects Affecting Our Territories. In this paper I have included a proposed draft Assembly of First Nations resolution for discussion.
I am writing at this time because the 2026 Assembly of First Nations Annual General Assembly on Tuesday July 14th 2026 includes dedicated discussions called: Plenary Session on Government Consultation on Streamlining Major Projects Honouring the Duty to Consult and Upholding Environmental Protections.
I respectfully offer the enclosed discussion paper and proposed resolution as a contribution to that broader national dialogue among First Nations. My hope is that these materials may assist Chiefs and their advisors in considering how consultation can continue to evolve in a manner that upholds Section 35, Treaty relationships, the Honour of the Crown, and Indigenous self-determination.
If you believe these materials raise issues worthy of broader discussion, I would be grateful for the opportunity to speak with you or members of your administration and to hear your perspective.
ATTACHED is my Discussion Paper and Proposed Resolution entitled Honour of the Crown" Strengthening Constitutional Consultation Standards for our Territories
Miigwech for your time and consideration.
John Hawke
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