The Duty to Consult: Forging a New Relationship with Aboriginal Peoples (review)

Dwight G. Newman’s The Duty to Consult is a succinct little pocket book that clearly examines the question, When precisely does a duty to consult with Aboriginal peoples arise? Newman, an associate professor at the University of Saskatchewan’s College of Law, effortlessly breaks down the Supreme Court of Canada’s established legal framework requiring governments to consult with Aboriginal peoples when contemplating actions that might affect their rights.

Newman’s book begins with a discussion of the Supreme Court trilogy—namely the cases known as the Haida Nation trilogy—that set out the fundamental doctrine and theory of the duty to consult. Following the Supreme Court decisions, he examines the relevant judicial doctrine further developed in subsequent lower court case law. Newman then explores how the development of policies by governments, corporate stakeholders, and Aboriginal communities seeks to further flesh out this duty of consultation. Lastly, he turns to international law to provide a comparative perspective with Australia’s “Right to Negotiate” before concluding on the future of directions of the duty to consult in Canadian Aboriginal law.

Intended to be accessible to a wider audience, his book addresses the misunderstandings surrounding this constitutional duty of consultation by offering different approaches to interpreting the increasing volume of case law dominating this field. The Haida Nation trilogy cases have transformed the discourse of the duty to consult and fundamentally altered the course of action governments must take before making various decisions. Newman clearly sets out the doctrinal and legal parameters as they have developed, such as the triggering conditions and the relevant stakeholders involved in the consultation. While the Court has concluded that the duty to consult need only be upheld by government, Newman sets out how third-party corporate stakeholders, lower court decisions, and various groups’ policy making have continued to affect the modern form of the duty to consult. In fact, he argues that no diminished duty to consult exists on the part of corporate stakeholders, particularly in the context of resource development in traditional Aboriginal territories. Furthermore, Aboriginal communities who have developed their own consultation policies for both governments and industry stakeholders have further defined negotiation and best practices with respect to the foundation of this duty.

In order to help readers fully understand the duty to consult, Newman comprehensively addresses the doctrine, policy, and practice for anyone who is coming to terms with this issue of national importance (Newman will also be providing a succinct summary of the most significant doctrinal and policy developments on the duty to consult on the publisher’s Web site, http://www.purichpublishing.com). He brings to the fore the pragmatic questions that arise in applying a somewhat abstract and theoretical doctrine to real-life situations. The duty to consult is really about fostering negotiation processes so that actions will not unfairly harm the interests of Aboriginal stakeholders; in essence, consultation is about hearing one another and seeking reconciliations that work for each party in both the short and the long term. While Newman acknowledges that much of the developed doctrine and policy relates to what works, he appeals to the deep-rooted principle of trust and reconciliation underlying the duty to consult.

Over the past five years, the duty to consult has had a significant impact on Aboriginal law, and it will certainly continue to affect the future directions of Aboriginal/non-Aboriginal relations. Newman also acknowledges that Canada’s relationship with Aboriginal peoples exists in the context of a set of developing international norms that may in time affect the future development of Canada’s duty-to-consult doctrine. In time, he asserts, the duty to consult may come to be a vehicle of reconciliation according.

Part of Purich’s Aboriginal Issues series, The Duty to Consult tackles a challenging legal issue of great public interest facing all Canadians by creating a greater understanding of the need for governments and corporate stakeholders to uphold and address this evolving duty to...