Ab Law Contact Info:

Eric Hovius, J.D. *
Lawyer/Negotiator
Eric.Hovius@Ab-Law.ca
905-560-0070

647-825-6725

Cambridge, Ontario

*Member of the Law societies of Saskatchewan and Upper Canada (Ontario); Graduate of the University of Toronto and the University of Saskatchewan.

 

 


 

 

Click Here for more information or call Ab Law Professional Corporation at 905-560-0070. 


Origins of Duty to Consult

 
Rio Tinto Alcan v. Carrier Sekani Tribal Council 2010 SCC 43
[38] The duty to consult embodies what Brian Slattery has described as a “generative” constitutional order which sees “section 35 as serving a dynamic and not simply static function” (“Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433, at p. 440).  This dynamicism was articulated in Haida Nation as follows, at para. 32:
 . . . the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution.  Reconciliation is not a final legal remedy in the usual sense.  Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982.
 
As the post‑Haida Nation case law confirms, consultation is “[c]oncerned with an ethic of ongoing relationships” and seeks to further an ongoing process of reconciliation by articulating a preference for remedies “that promote ongoing negotiations”: D. G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (2009), at p. 21.