Navigating Murky Waters: Emerging Trends in Aboriginal Consultation and Project Approval

Abstract

This article surveys the most significant recent Canadian decisions engaging the Crown’s duty to consult Aboriginal peoples in the context of natural resource and infrastructure developments and explores the following themes. First, project opponents are initiating legal challenges early and often. Second, recent decisions have affirmed the principle that the duty to consult can be fulfilled through an existing regulatory review process. Third, the jurisdiction of certain administrative tribunals to determine the adequacy of consultation and other constitutional questions remains unsettled. Fourth, Aboriginal groups continue to launch novel challenges, seeking to expand the scope of the duty to consult, often beyond the specific Crown conduct being challenged. Fifth, courts are increasingly intolerant of abuses of process, particularly where litigants fail to seek proper recourse for their grievances. Finally, project proponents are seeking recourse against the Crown in cases where it has failed to adequately consult or accommodate.