Oct 28, 2009
[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
Purich Publishing Ltd. – 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.
Dwight G. Newman is Associate Professor at the University of Saskatchewan, College of Law. He holds a law degree from the University of Saskatchewan and doctorate from Oxford University.