From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult

Canadian Bar Review, Vol. 29, p. 252, 2000

14 Pages Posted: 4 May 2010

See all articles by Sonia Lawrence

Sonia Lawrence

Osgoode Hall Law School

Patrick Macklem

University of Toronto - Faculty of Law

Date Written: 2000

Abstract

The judiciary has repeatedly called on First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements. It has also held that the Crown is under a duty to consult with a First Nation when it proposes to engage in an action that threatens to interfere with existing Aboriginal or treaty rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. In this Article, the authors argue that the duty to consult requires the Crown, in most cases, to make good faith efforts to negotiate an agreement specifying the rights of the parties when it seeks to engage in an action that adversely affects Aboriginal interests.

Keywords: constitutional law, aboriginal rights, duty to consult

JEL Classification: K10, K19

Suggested Citation

Lawrence, Sonia and Macklem, Patrick, From Consultation to Reconciliation: Aboriginal Rights and the Crown’s Duty to Consult (2000). Canadian Bar Review, Vol. 29, p. 252, 2000, Available at SSRN: https://ssrn.com/abstract=1599720

Sonia Lawrence (Contact Author)

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Patrick Macklem

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-3873 (Phone)
416-978-7899 (Fax)

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