The Duty To Consult

"[W]hen precisely does a duty to consult arise? The foundation of the duty in the Crown's honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it." Chief Justice Beverley McLachlin, Supreme Court of Canada, Haida Nation v. British Columbia, 2004. 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.

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.

"This book contains an in-depth discussion of the aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982, the provisions of the Indian Act regarding reserves and band councils, recent self-government regimes, the recognition of indigenous legal traditions, division of powers, taxation as well as the application of the child welfare and criminal justice systems. It also covers recent developments, such as the duty to consult and accommodate or the adoption of the United Nations Declaration on the Rights of the Indigenous Peoples."--pub. desc.

There is a clear connection between the health of individuals and the legal regime under which they live, particularly Aboriginal peoples. From the early ban on traditional practices to the constitutional division of powers (including who is responsible for off-reserve Indians under the Constitution), this is an historical examination of Canadian legal regimes and the impact they have had on the health of Aboriginal peoples. With an emphasis on the social determinants of health, Boyer outlines how commitments made regarding Aboriginal rights through treaties and Supreme Court of Canada rulings can be used to advance the health of Aboriginal peoples.

The changing legal, political and economic landscape of Aboriginal Peoples represent some of the biggest change, challenges, risks and exciting opportunities for individuals and organizations today. Whether you're just starting out or want to increase your knowledge, this book is written to help individuals and organizations to work more effectively with Aboriginal peoples. The information in this book has been field tested with Aboriginal and non-Aboriginal peoples and will help readers get beyond background information and aboriginal awareness and into understanding and guidance that can be applied in innovative ways wherever you find Aboriginal peoples.

The Truth and Reconciliation Commission urged a better understanding of Aboriginal law for all Canadians. This book responds to that call, outlining significant legal developments in straightforward, non-technical language. Jim Reynolds provides the historical context needed to understand the relationship between Indigenous peoples and settlers and explains key topics such as sovereignty, fiduciary duties, the honour of the Crown, Aboriginal rights and title, treaties, the duty to consult, Indigenous laws, and international law. He concludes that rather than leaving the judiciary to sort out essentially political issues, politicians need to take responsibility for this crucial aspect of building a just society.