Revisiting the Duty to Consult Aboriginal Peoples

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Revisiting the Duty to Consult Aboriginal Peoples

Since the release of The Duty to Consult (Purich, 2009), there have been many important developments on the duty to consult, including three major Supreme Court of Canada decisions. 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, but often using it only as a starting point for different discussions. Evolving international legal norms have also come into practice that may have future bearing. Newman offers clarification and 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.

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Law and Legal Studies: General Legal Studies

Sociology: Race, Ethnic, and Minority Relations

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Table of Contents

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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