The Current State of the Law in Canada on Crown Obligations to Consult and Accommodate Aboriginal Interests in Resource Development

Abstract

The Supreme Court of Canada has clarified that the duly to consult with Aboriginal groups and. where indicated, to accommodate their interests lies with the

Crown alone. In the context ofproject development, the duty to consult and accommodate may be satisfied by the Crown providing opportunities for meaningful involvement in regulatory and environmental assessment processes and addressing Aboriginal concerns. This includes engaging directly with the Aboriginal group, soliciting and listening carefully to concerns, and attempting to minimize the impact on Aboriginal rights. In recent decisions, the courts have repeatedly focused on the honour of the Crown and, in designing remedies, have emphasized the need to balance Aboriginal interests with those of the broader society. Where the duty to consult has not been satisfied, the courts have more frequently ordered ongoing consultation and have less frequently quashed permits and approvals. Prudent project proponents will continue to engage potentially affected Aboriginal groups in a meaningful way. attempt to identify Aboriginal concerns, discuss with Aboriginal groups potential strategies to minimize or avoid infringements of Aboriginal rights, and communicate accurately these efforts to government decision-makers.