Combined Academic Publishers

The Duty to Consult

9781895830378: Paperback
Release Date: 25th October 2009

9781895830392: PDF
Release Date: 25th October 2009

9781895830491: EPUB
Release Date: 25th October 2009

Dimensions: 152 x 229

Number of Pages: 128

Series Purich's Aboriginal Issues Series

UBC Press

The Duty to Consult

New Relationships with Aboriginal 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.
Paperback / £25.99
PDF / £13.99
EPUB / £13.99

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.


1. Doctrine and Theory

The Supreme Court Trilogy

Understanding the Duty to Consult

Theoretical Approaches to the Duty to Consult

2. Legal Parameters of the Duty to Consult


Triggering the Duty to Consult

a. Knowledge of the Aboriginal Title, Right, or Treaty Right

b. Adverse Effect Element of the Triggering Test

c. Contemplated Government Conduct

d. Summary on Triggering Test

Consultation Partners

Judicial and Quasi-Judicial Intervention on the Duty to Consult


3. The Doctrinal Scope  and Content of the Duty to Consult


Content of the Duty to Consult

a. Introducing the Spectrum of Requirements on the Duty to Consult

b. Specific Factors within the Consultation Requirements

c. The Consultation Spectrum

Table: Matrix on Consultation Intensity

d. An Example: The Keystone Pipeline Case

The Duty to Accommodate

The Duty to Consult and Economic Accommodation

Legally Acceptable Consultation and Good Consultation

4. The Law in Action of the Duty to Consult

Introduction: The Concept of the Law in Action

Development of Governmental Consultation Policies

Aboriginal Communities' Consultation Policies

Development of Corporate Consultation Policies

Policies, Practices, and the Formation of "Law"


5. International and Comparative Perspectives for the Future


International Law and the Duty to Consult

Comparative Law: Australia's Experience with the "Right to Negotiate"


6. Understanding the Duty to Consult



Dwight Newman is Associate Professor of Law at the University of Saskatchewan, where he also served as Associate Dean of Law from 2006 to 2009. He is also an Honourary Senior Research Fellow at the University of the Witwatersrand School of Law in South Africa. He completed his law degree at the University of Saskatchewan, following which he served as a law clerk to Chief Justice Lamer and Justice LeBel at the Supreme Court of Canada. He completed his doctorate at Oxford University, where he studied as a Rhodes Scholar and as a SSHRC Doctoral Fellow. He has written numerous articles on Aboriginal law, constitutional law, and international law, and he is co-author of Understanding Property: A Guide to Canada’s Property Law, 2nd ed.