Comparing Aboriginal and Other Duties to Consult in Canadian Law

Authors

  • Peter Carver

DOI:

https://doi.org/10.29173/alr108

Abstract

This article compares recent Aboriginal rights and labour relations court decisions to assess the way the Canadian jurisprudence has conceptualized the duty to consult. While traditionally the duty to consult has been considered a constitutional duty, enshrined in section 35(1) of the Constitution Act, 1982 and section 2(d) of the Canadian Charter of Rights and Freedoms, the author suggests that courts have had great difficulty conceptualizing this duty as a constitutionally required process. The author’s analysis reviews the sources and purposes of constitutional duties to consult and the hurdles the courts have faced in applying the duty meaningfully, and drawing on concepts from administrative law, offers a tentative solution to the problem of making consultative practices effective.

Author Biography

Peter Carver

MA (Toronto), LLB (McGill), LLM (UBC), Associate  Professor, Faculty of Law, and Chairperson of the Board of the Centre for Constitutional Studies, University of Alberta.

Downloads

Issue

Vol 49, No 4: Special Issue: Administrative and Regulatory Law

Section

Articles

License

For Editions following and including Volume 61 No. 1, the following applies.

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License

For Editions prior to Volume 61 No. 1, the following applies.

Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:

  1. Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
  2. Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
  3. Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
  4. Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.

To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.