From Consultation to Consent

Abstract

This article analyses the apparent tensions between the current Canadian law on the Crown's duty to consult with Indigenous peoples, which generally refuses an Indigenous veto over proposed land uses in traditional lands, and the principle of prior informed indigenous consent, as enshrined in the recent U.N. Declaration of the Rights of Indigenous Peoples. The tension between these competing visions of the rights of Indigenous communities has given rise not just to theoretical legal conflicts, but also to destructive conflicts on the ground. The author argues that attention to the dialogic framework within which Indigenous concerns are addressed during consultations, and particularly to indigenous peoples' participation in developing that framework, is key to managing those conflicts effectively and to reconciling current Canadian law and practice with the principles of the U.N. Declaration. Next it examines a question on which Canadian consultation law is largely silent: the allocation of benefits derived from developments on Indigenous traditional lands. Finally, the analysis turns to the principle of free, prior and informed consent to the substance of proposed developments on traditional lands. The article concludes that the objective of obtaining such consent is a salutary one that has been wrongly marginalized in both the jurisprudence and Canadian government practice.