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Distributed for Purich Publishing

The Duty to Consult

New Relationships with Aboriginal Peoples

Canada’s Supreme Court has established a new legal framework requiring governments to consult with Aboriginal peoples when contemplating actions that may affect their rights. Professor Newman examines Supreme Court and lower court decisions, legislation at various levels, policies developed by governments and Aboriginal communities, and consultative round tables that have been held to deal with important questions regarding this duty. He succinctly examines issues such as: when is consultation required; who is to be consulted; what is the nature of a “good” consultation; to what extent does the duty apply in treaty areas; and what duty is owed to Métis and non-status Indians? Newman also examines the philosophical underpinnings of the duty to consult, and the evolving framework in international law and similar developments in Australia.

Table of Contents


1. Doctrine and Theory

The Supreme Court Trilogy

Understanding the Duty to Consult

Theoretical Approaches to the Duty to Consult

2. Legal Parameters of the Duty to Consult


Triggering the Duty to Consult

a. Knowledge of the Aboriginal Title, Right, or Treaty Right

b. Adverse Effect Element of the Triggering Test

c. Contemplated Government Conduct

d. Summary on Triggering Test

Consultation Partners

Judicial and Quasi-Judicial Intervention on the Duty to Consult


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


Content of the Duty to Consult

a. Introducing the Spectrum of Requirements on the Duty to Consult

b. Specific Factors within the Consultation Requirements

c. The Consultation Spectrum

Table: Matrix on Consultation Intensity

d. An Example: The Keystone Pipeline Case

The Duty to Accommodate

The Duty to Consult and Economic Accommodation

Legally Acceptable Consultation and Good Consultation

4. The Law in Action of the Duty to Consult

Introduction: 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 and Comparative Perspectives for the Future


International Law and the Duty to Consult

Comparative Law: Australia’s Experience with the "Right to Negotiate"


6. Understanding the Duty to Consult



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