Duty to Consult

New Relationships with Aboriginal Peoples

Brian K. Murphy, Dwight Newman

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. The nature of the duty is to be defined by negotiation, best practices, and future court decisions. According to Professor Newman, good consultations are about developing relationships and finding ways of living together in the encounter that history has thrust upon us.

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; can consultation be carried out by quasi-judicial agencies and third parties; to what extent does the duty apply in treaty areas; and what duty is owed to Métis and non-status Indians? Professor Newman also examines the evolving duty to consult in international law, similar developments in Australia, and the philosophical underpinnings of the duty.

Contents

·         Preface

1. Doctrine and Theory

·         1.1 The Supreme Court Trilogy

·         1.2 Understanding the Duty to Consult

·         1.3 Theoretical Approaches to the Duty to Consult

2: Legal Parameters of the Duty to Consult

·         2.1 Introduction

·         2.2 Triggering the Duty to Consult

·         2.2(a) Knowledge of the Aboriginal Title, Right, or Treaty Right

·         2.2(b) Adverse Effect Element of the Triggering Test

·         2.2(c) Contemplated Government Conduct

·         2.2(d) Summary on Triggering Test

·         2.3 Consultation Partners

·         2.4 Judicial and Quasi-Judicial Intervention on the Duty to Consult

·         2.5 Conclusion

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

·         3.1 Introduction

·         3.2 Content of the Duty to Consult

·         3.2(a) Introducing the Spectrum of Requirements on the Duty to Consult

·         3.2(b) Specific Factors within the Consultation Requirements

·         3.2(c) The Consultation Spectrum

·         3.2(d) An Example: The Keystone Pipe Case

·         Table: Matrix on Consultation Intensity

·         3.3 The Duty to Accommodate

·         3.4 The Duty to Consult and Economic Accommodation

·         3.5 Legally Acceptable Consultation and Good Consultation

4: The Law in Action of the Duty to Consult

·         4.1 Introduction: The Concept of the Law in Action

·         4.2 Development of Governmental Consultation Policies

·         4.3 Aboriginal Communities’ Consultation Policies

·         4.4 Development of Corporate Consultation Policies

·         4.5 Policies, Practices, and the Formation of “Law”

5: International and Comparative Perspectives for the Future

·         5.1 Introduction

·         5.2 International Law and the Duty to Consult

·         5.3 Comparative Law: Australia’s Experience with the “Right to Negotiate”

·         5.4 Conclusion

6: Understanding the Duty to Consult

·         Notes

·         Index

About the Authors

Dwight G. Newman is Associate Professor of Law at the University of Saskatchewan, where he also served as Associate Dean of Law from 2006 to 2009.  He is also an Honourary Senior Research Fellow at the University of the Witwatersrand School of Law in South Africa.  He completed his law degree at the University of Saskatchewan, following which he served as a law clerk to Chief Justice Lamer and Justice LeBel at the Supreme Court of Canada.  He completed his doctorate at Oxford University, where he studied as a Rhodes Scholar and as a SSHRC Doctoral Fellow.  He has written numerous articles on Aboriginal law, constitutional law, and international law, and he is co-author of Understanding Property: A Guide to Canada’s Property Law, 2nd ed.