Re-imagining the Duty to Consult: Requiring a Substantive Outcome to Further Reconciliation

Abstract

The Crown has a duty to consult with Indigenous peoples on actions that may adversely affect claimed Indigenous interests that have not yet been established as recognized rights. Currently, the duty to consult remains a procedural obligation that does not require the consent of the Indigenous claimants to move forward. The crux of the duty to consult is to reconcile Crown and Indigenous interests. This paper explores how the duty to consult can better promote reconciliation by requiring a substantive outcome. Requiring a substantive outcome enhances the ability of Indigenous claimants to protect their own interests in the face of impactful state action. This paper illuminates the ongoing limitations of the duty to consult in achieving reconciliation, including, amongst other issues, its inherently procedural nature and the limited negotiating power of Indigenous claimants in the consultation process. Next, alternative conceptions of the duty are discussed. This paper concludes by advocating for an altered framework whereby Indigenous claimants negotiate with the Crown and project proponents through a constitutionally entrenched head of power, rather than relying on the courts to substantiate Indigenous interests within the broader authority of the Crown