The Duty to Consult

In a concise manner, the author addresses issues including: what consultation with Aboriginal communities means; when it is required; the importance of non-legal approaches to defining the duty; and the evolving international duty to consult and the UN Declaration on the Rights of Indigenous Peoples.

What does the duty to consult actually mean, and when it is required? The policies and decisions made regarding this duty are concisely outlined, along with important questions that remain.Canada’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.