The Crown's Duty to Consult Aboriginal Peoples: Towards an Understanding of the Source, Purpose, and Limits of the Duty
AbstractWhile the duty to consult fulfils a critically important role in defining, guiding, and developing the interrelationship of the Crown and Aboriginal peoples, the role of the duty to consult, properly understood, is but one of several important elements in the overall scheme of satisfying the Crown’s constitutional duties to Canada’s Aboriginal peoples. The Crown’s duty to consult and, if necessary, accommodate is both important and useful; however, this duty to consult should not be stretched in an attempt to fulfil other roles or serve other purposes. The Crown’s duty to consult coexists with the other elements of the scheme, including the Crown’s fiduciary obligations, treaty obligations, and the obligation to justify infringements of Aboriginal rights and title. This distinction in approach between the duty to consult and substantive Aboriginal rights is more understandable when one clearly distinguishes between the purpose of and the limitations on the Crown’s duty to consult and those of the other elements of the Crown’s obligations to satisfy its constitutional duties to Canada’s Aboriginal peoples.
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