The Duty to Consult

New Relationships with Aboriginal Peoples

Dwight G. Newman

  • $30.00s paperback (9781895830378) Add to Cart
  • hardcover not available
  • Published: January 2017
  • Subject Listing: Native American and Indigenous Studies; Law
  • Bibliographic information: 128 pp., 6 x 9 in.
  • Territorial rights: US rights only
  • Distributed for: UBC Press
  • Contents

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 Metis 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.
Dwight 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 is coauthor of Understanding Property: A Guide to Canada's Property Law, 2nd ed.

"When 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