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Release Date:01 Mar 2014
ISBN:9781895830811
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Revisiting the Duty to Consult Aboriginal Peoples

UBC Press, Purich Publishing

“The duty to consult is part of the process for achieving ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.’”

– LeBel, J., Supreme Court of Canada, Behn v. Moulton Contracting Ltd.

Since the release of The Duty to Consult in 2009, there have been many important developments on the duty, including three major Supreme Court of Canada decisions. Both the Supreme Court and lower courts have grappled with many questions they had not previously answered, and these very attempts have raised yet new questions. Governments, Aboriginal communities, and industry stakeholders have engaged with the duty to consult in new and probably unexpected ways, developing policy statements or practices that build upon the duty to consult, but often use it only as a starting point for different discussions. At the same time, evolving international legal norms have come to engage with the duty to consult in new ways that may have further impact in the future.

Professor Newman clarifies the duty to consult as a constitutional duty, offers some approaches to understanding the developing case law at a deeper and more principled level, and suggests possible future directions for the duty to consult in Canadian Aboriginal law. The duty to consult has a fundamental importance for all Canadians, yet misunderstandings of the doctrine remain widespread. This book will help address many of those misunderstandings.

Dwight G. Newman is professor of law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. He is co-author of The Law of the Canadian Constitution and author of Community and Collective Rights: A Theoretical Framework for Rights Held by Groups.

Acknowledgements

Preface to the Revised Edition

1. Introduction: Doctrine and Theory

Origins of the Duty to Consult

The 2004–2005 Supreme Court Trilogy

Recent Supreme Court Cases and Emerging Issues

Theoretical Approaches to the Duty to Consult

2. Legal Parameters of the Duty to Consult

Triggering Test

Role of Early Engagement

Consultation on Strategic Decisions and Legislation

Consultation Partners

Role of Project Proponents

Negotiated Alternatives to the Duty to Consult

3. The Doctrinal Scope and Content of the Duty to Consult

Content of the Duty to Consult — The Spectrum Analysis

Duties of Accommodation

Economic Accommodation

Leveraging the Duty to Consult

Rising Above the Minimum Legal Requirements

4. The Law in Action of the Duty to Consult

The Concept of the Law in Action

Development of Governmental Consultation Policies

Aboriginal Communities’ Consultation Policies

Development of Corporate Consultation Policies

Policies, Practices, and the Formation of “Law”

5. International Law and the Duty to Consult

Key International Law Concepts

Implications of the Declaration on the Rights of Indigenous Peoples

Australia and the Right to Negotiate

Consultation Norms in Latin America

Other State Practice on Consultation

Emerging International Law Norms of Consultation

Staying Ahead of the Regulatory Curve

6. Understanding the Duty to Consult

Index

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