The Duty to Consult Resource Page

Provided by Dwight Newman, Associate Professor of Law, University of Saskatchewan

The duty to consult doctrine in Canadian law is a doctrine developed by the Supreme Court of Canada.

This doctrine says that governments making decisions that may have an impact on Aboriginal rights or treaty rights have a duty to consult the potentially affected Aboriginal communities even prior to final proof of the rights in court or final settlement on the rights in negotiation processes.

This webpage seeks to provide basic information and resources on the duty to consult doctrine and will be updated over time.

The Duty to Consult: Supreme Court of Canada Case Law

The duty to consult was first introduced in its modern form in a series of Supreme Court of Canada cases in 2004 and 2005:

the Haida Nation case (Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73)
the Taku River Tlingit First Nation case (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74)
the Mikisew Cree First Nation case (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388)

The duty to consult doctrine has been back recently before the Supreme Court of Canada in two cases:

an appeal from the Yukon Court of Appeal decision in Little Salmon/Carmacks First Nation was heard by the Supreme Court of Canada on November 12, 2009. That decision is now under reserve. The arguments before the Supreme Court are available in the factums filed and in the video webcast maintained by the Court. See also my GUIDE TO THE WEBCAST. This case has been the subject of comment in newspapers and by law firms (including Gowlings and Faskens).
the Court granted leave to appeal in Rio Tinto Alcan v. Carrier Sekani Tribal Council on November 5, 2009. The Court's website has the case docket that will show developments in this appeal from a British Columbia Court of Appeal judgment.

[Further material will be added to this website shortly - by late November 2009. In the meantime, if you want more information about the duty to consult, I include information on my book on the duty to consult below...]

My book on the Duty to Consult has just been released.

Dwight G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich, 2009)
To order, click here to go to the publisher's website: Purich Publishing
Or find it in fine bookstores!