Revisiting the Duty to Consult Aboriginal Peoples

“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.