Description
Book SynopsisCanada’s Supreme Court has established a new legal framework requiring governments to consult with Aboriginal peoples when contemplating actions that may affect their rights. 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; to what extent does the duty apply in treaty areas; and what duty is owed to Métis and non-status Indians? Newman also examines the philosophical underpinnings of the duty to consult, and the evolving framework in international law and similar developments in Australia.
Table of ContentsPreface
1. Doctrine and Theory
The Supreme Court Trilogy
Understanding the Duty to Consult
Theoretical Approaches to the Duty to Consult
2. Legal Parameters of the Duty to Consult
Introduction
Triggering the Duty to Consult
a. Knowledge of the Aboriginal Title, Right, or Treaty Right
b. Adverse Effect Element of the Triggering Test
c. Contemplated Government Conduct
d. Summary on Triggering Test
Consultation Partners
Judicial and Quasi-Judicial Intervention on the Duty to Consult
Conclusion
3. The Doctrinal Scope and Content of the Duty to Consult
Introduction
Content of the Duty to Consult
a. Introducing the Spectrum of Requirements on the Duty to Consult
b. Specific Factors within the Consultation Requirements
c. The Consultation Spectrum
Table: Matrix on Consultation Intensity
d. An Example: The Keystone Pipeline Case
The Duty to Accommodate
The Duty to Consult and Economic Accommodation
Legally Acceptable Consultation and Good Consultation
4. The Law in Action of the Duty to Consult
Introduction: The Concept of the Law in Action
Development of Governmental Consultation Policies
Aboriginal Communities' Consultation Policies
Development of Corporate Consultation Policies
Policies, Practices, and the Formation of "Law"
Conclusion
5. International and Comparative Perspectives for the Future
Introduction
International Law and the Duty to Consult
Comparative Law: Australia's Experience with the "Right to Negotiate"
Conclusion
6. Understanding the Duty to Consult
Notes
Index
