Re-Imagining Indigenous Consultation: An Examination of Canada’s Duty to Consult
Abstract
This examination of Canada’s duty to consult doctrine advances two arguments. First, the doctrine may not be serving the interests of some consultation participants effectively. Second, the existing literature does not address the challenges posed by multi-jurisdictional projects or the Crown’s decreased involvement in consultations adequately. Consequently, our understanding of the doctrine is incomplete and our ability to improve its efficacy may be restricted.
This dissertation explores the doctrine’s principles, strengths, and weaknesses to identify opportunities for improvement. It re-imagines the doctrine, identifying specific ways to improve its efficacy. At bottom, this dissertation considers three questions. First, to what extent does the doctrine accommodate contemporary needs? Second, could revising the doctrine reduce the number of consultations being referred to the judiciary? Third, could a revised doctrine contribute to Crown-Indigenous reconciliation?
There is a direct connection between Canada’s consultation doctrine and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Each seeks to advance and protect the rights of Indigenous peoples. Although their detailed comparison exceeds this dissertation's scope, notable conflicts between them and possibly Canada’s constitutional framework merit discussion. Accordingly, several issues are identified in this dissertation’s body and discussed more expansively in its appendix.