“Irreconcilable? The Duty to Consult and Administrative Decision Makers”

Janna Promislow

Abstract


Haida Nation v British Columbia (Minister of Forests) ushered in a new era in Aboriginal law. In contrast to the emphasis on history in section 35’s first 20 years, the Haida Nation era offered a determinedly forward-looking approach to the reconciliation purposes ascribed to Aboriginal rights by the Supreme Court. Under the Haida Nation paradigm, and the duty to consult and accomodate it imposed on the Crown in relation to pre-proof aboriginal rights claims, reconciliation is a process that “begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense.” Nine years after Haida Nation, the legal parameters and the institutional structures involved in implementing the duty to consult and this new direction remain incomplete and formative.

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