About that famous “duty to consult”

- January 9th, 2013

Aboriginal groups are challenging the Harper government over some measures they don’t like, claiming the government is acting illegally because it did not consult with Aboriginals enough. (I think that’s what they mean – it isn’t always very easy to follow their reasoning…)

So I thought I’d help by going back to look for the last word on that famous “duty to consult”. The seminal case is that of Haida Nation v British Columbia (from 2004, link to the ruling here) and – how to put this gently – it’s not good news for those who wish to challenge bills in Parliament. As the Court said:

The content of the duty varies with the circumstances and each case must be approached individually and flexibly. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal people with respect to the interests at stake. The effect of good faith consultation may be to reveal a duty to accommodate. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.

Methinks someone’s setting themselves up for a nasty surprise.

Categories: Aboriginals

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