The Rule and Role of Law: The Duty to Consult, Aboriginal Communities, and the Canadian Natural Resource Sector

Abstract

In the close to 10 years since the Supreme Court of Canada first gave it modern form, the Canadian doctrine of a “duty to consult” Aboriginal communities has been constantly referenced in the media, constantly considered by natural resource project proponents, and constantly misunderstood. What is undeniable is that the doctrine will play a key role in the nation’s efforts to unlock the vast potential of its natural resources, and bring prosperity to Aboriginal people in Canada. While much of the doctrine is nuanced, still developing or open to interpretation, several misconceptions about the doctrine can and must be corrected.

This paper reviews the Canadian duty to consult Aboriginal communities and develops a set of key recommendations directed to different actors who interact with the duty to consult. The The evolution of the duty to consult doctrine continues, but what is increasingly clear is that used properly, it can support a new era of partnerships that offer win-win-win outcomes from business-Aboriginal-government collaboration in the well-managed development of Canada’s natural resource potential.

Keywords: Indigenous rights, Aboriginal rights, duty to consult, consultation, natural resource development