Moving Backwards: Does the Lack of Duty to Consult Create the Right to Infringe Aboriginal and Treaty Rights?

13 Pages Posted: 13 Mar 2013 Last revised: 17 Apr 2014

See all articles by Shin Imai

Shin Imai

York University - Osgoode Hall Law School

Ashley Stacey

York University - Osgoode Hall Law School

Date Written: January 21, 2013

Abstract

The federal and provincial governments have a duty to consult Aboriginal people when they propose to authorize development activities that may impact Aboriginal or treaty rights.

This article comments on two recent cases addressing the role of third parties, such as municipalities and private businesses, in the duty to consult and accommodate. In Neskonlith Indian Band v Salmon Arm City and Wahgoshig First Nation v Solid Gold Resources Corp, the courts focused on whether the particular entity had a duty to consult. The consequence of finding no duty to consult was that the activity in dispute could proceed. This case commentary argues that the courts conflate who has the duty to consult and whether consultation is necessary before a project can proceed. These are two separate legal issues. Consultation is a condition precedent to proceeding with a project that infringes or potentially infringes Aboriginal rights.

A revised version of this paper is now available as: Shin Imai & Ashley Stacey, “Municipalities and the Duty to Consult Aboriginal Peoples: A Case Comment on Neskonlith Indian Band v Salmon Arm (City)” pp 293-311, (2014) 47:1 UBC L Rev 293.

Keywords: duty to consult and accommodate, First Nations, Aboriginal rights, municipality, mining company, municipality, treaty rights

Suggested Citation

Imai, Shin and Stacey, Ashley, Moving Backwards: Does the Lack of Duty to Consult Create the Right to Infringe Aboriginal and Treaty Rights? (January 21, 2013). Osgoode CLPE Research Paper No. 13/2013. Available at SSRN: https://ssrn.com/abstract=2225297 or http://dx.doi.org/10.2139/ssrn.2225297

Shin Imai (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Ashley Stacey

York University - Osgoode Hall Law School

Toronto, Ontario
Canada

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