This is an extract of our Duty To Consult And Accommodate document, which we sell as part of our Aboriginal Law Notes collection written by the top tier of University Of Victoria; University Of Toronto students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Aboriginal Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Duty to Consult Summary, Scope, Origins (Haida)
-arises from special rels bw Fn and Crown > honour of Cr; RP, honour of Cr, reconciliation (Haida; Mikisew)
-arises w any Cr entity (both fed and prov) when it has knowledge of rights engaged (Haida; St. Catherines)
-Delgamuukw: consultation and accommodation is part of justification for infringement
-broad- incl treaties, legislation; not ltd to specific projects- can be applied to higher level decisions
-duty is to engage in meaningful consultation with intention of substantially addressing FN concerns
-no reqmt for consensus, but reqmt for substantive neg in GF, no sharp dealings, but hard bargaining is ok (Haida)
-FN: have duty to act in GF, not frustrate process, not take positions that preclude Cr duty (Heltsiuk; Mikisew)
- duty doesn't extend to past harms (Rio Tinto)
-live issue for commercial interests- but doesn't explicitly apply to them (Haida)
-generally involves small, isolated communities, overwhelmed admin bodies- need for expansive duty to address power imbalance
-context: lots of development currently in BC
-can include accommodation > supposed to follow meaningful consultation (Haida)
-displacement of FD and more rigorous of Sparrow requirements (Peeling)
-only applies where there is proven rights and title, e.g. on reserve- troublesome; live area of the law and on the ground (Peeling)
-duty is supposed to give rights, but may not actually be (Peeling) Approach (Haida):
-spectrum or proportional approach
-aims to uphold honour of the crown
-shouldn't be applied narrowly or technically (Taku) Test (Haida):
1. Does the duty to consult exist? Has it been triggered? (Rio Tinto) i. Crown has knowledge real or constructive of aboriginal right/title
-includes awareness of past occupation ii.
Crown is contemplating activity that will adversely affect?
-e.g.: right/title in Haida; title in Taku
iii. The strength of the claim (real or constructive knowledge?)
-Mikisew modifications> if it is a treaty right:
-specificity of promise in treaty
-history of dealings
-in treaty: taking up land = procedural rights, promise to 'hunt as before = substantive rights
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