Research Paper Number

10/2016

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2016

Keywords

Aboriginal law, Indigenous law, duty to consult, environmental impact assessment (EIA), Canadian constitutional law

Abstract

As the duty to consult Aboriginal peoples becomes operationalized within the frameworks of government decision-making, the agencies responsible for these decisions 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 duties 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 paper examines the implementation of the duty to consult through various stages of the 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 paper also considers the broader approach to EA that is more likely to contribute to the overarching goal of reconciliation. Here the central claim is that greater attention must be paid to the deliberative and justificatory qualities of EA.

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