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Environment • Aboriginal • Energy

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September 27, 2018

Consultation Expectations: Can the Government Change its Consultation Approach and Still Satisfy its Duty to Consult?

Federal, provincial, and territorial governments have a duty to consult Indigenous peoples when the government has knowledge of an Aboriginal right or claim that could be affected by a government’s decision.  The duty to consult is grounded in the “honour of the Crown."  

The honour of the Crown requires the government to act in “good faith to provide meaningful consultation appropriate to the circumstances."

As the content of the duty to consult exists on a spectrum, it is not always clear what kind of consultation measures the government must take to satisfy its duty to consult. Case-by-case, courts have provided guidance as to what measures are required in various circumstances.

The Ontario Superior Court of Justice in Eabametoong First Nation v Minister of Northern Development and Mines provides direction about what is included in consultation at the low end of the spectrum, and the government’s ability to change its approach to consultation during a particular consultation.

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