This is an extract of our Duty To Consult 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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