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Osgoode Hall Law Journal

Article Title

Process and Reconciliation: Integrating the Duty to Consult with Environmental Assessment

Authors

Author #1

Abstract

As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. The article examines the implementation of the duty to consult through various stages of EA processes, identifying the EA practices that are best able to satisfy the legal requirements and the aspirations of the duty to consult, as well as to identify areas that are likely to present challenges moving forward. The article also considers a broader approach to EA that is more likely to contribute to the overarching goal of reconciliation, arguing that greater attention must be paid to the deliberative and justificatory qualities of EA.