Assessing the Duty to Consult PDF Download

Author:
Publisher:
ISBN: 9780889755482
Category : Electronic books
Languages : en
Pages : 46

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Author: Dwight G. Newman
Publisher: UBC Press
ISBN: 1895830494
Category : Law
Languages : en
Pages : 129

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Canada’s Supreme Court has established a new legal framework requiring governments to consult with Aboriginal peoples when contemplating actions that may affect their rights. Professor Newman examines Supreme Court and lower court decisions, legislation at various levels, policies developed by governments and Aboriginal communities, and consultative round tables that have been held to deal with important questions regarding this duty. He succinctly examines issues such as: when is consultation required; who is to be consulted; what is the nature of a “good” consultation; to what extent does the duty apply in treaty areas; and what duty is owed to Métis and non-status Indians? Newman also examines the philosophical underpinnings of the duty to consult, and the evolving framework in international law and similar developments in Australia.

Author: Minh Thuy Do
Publisher:
ISBN:
Category :
Languages : en
Pages : 0

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The duty to consult is an Aboriginal right under s. 35 of Canada's Constitution Act, 1982. Under the duty, the Crown must consult with Indigenous nations if their asserted or recognized rights may be negatively impacted by a proposed Crown action. The Supreme Court of Canada (SCC) has explained that all parties in consultation need to act in good faith and that the Crown is expected to act honourably in order to discharge the duty. This dissertation posits a framework to evaluate whether the Crown upholds its honour throughout decision-making. The framework of input, throughput, and output legitimacy can demonstrate whether the Crown is acting legitimately towards Indigenous peoples' and their concerns throughout various stages of decision-making. The dissertation then applies this framework to B.C.'s Environmental Assessment (B.C. EA) process in order to assess how the duty to consult is implemented. I find that the Crown does not attain some key aspects of input, throughput, and output legitimacy. In particular, Indigenous parties perceive that they do not have adequate resources to participate effectively in consultation activities; there is a lack of accountability and transparency regarding the Crown's decision-making throughout the EA process; and the Environmental Assessment Office does not sufficiently explain how its preferred course of action provides superior protection for Aboriginal rights over alternative actions. The Crown exhibits these shortcomings because it prefers to fulfill the duty in a way that is least disruptive to existing norms and practices, even when doing so increases the risk of Indigenous peoples pursuing litigation to challenge the Crown. Consequently, contentious politics and expensive, time-consuming legal challenges continue, ultimately casting doubt on the duty to consult's ability to advance reconciliation between the Crown and Indigenous peoples.

Author: American Bar Association. House of Delegates
Publisher: American Bar Association
ISBN: 9781590318737
Category : Law
Languages : en
Pages : 216

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The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.

Author: Frederic L. Kirgis
Publisher:
ISBN:
Category : Law
Languages : en
Pages : 416

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This study examines the role and the value of prior consultation among nations in international law. International disputes frequently occur when one nation, with no hostile intent, takes unilateral action that adversely affects the interests of other nations. It is generally acknowledged that some of these disputes could be avoided, and others could be ameliorated, if the acting government would assess beforehand the risk of harm to other nations. The most effective way to do this is through prior consultation with representatives of potentially affected nations. When governments are able to act unilaterally, they have very little incentive to refrain from taking self-interested action in order to consider the adverse interests of other nations. Thus, it is important to determine the circumstances in which international law imposes on them a duty to consult. The author examines these determining circumstances in detail.

Author: Dwight G. Newman
Publisher: Purich Publishing
ISBN: 077488049X
Category : Law
Languages : en
Pages : 192

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Book Description
Since the release of The Duty to Consult (Purich, 2009), there have been many important developments on the duty to consult, including three major Supreme Court of Canada decisions. Governments, Aboriginal communities, and industry stakeholders have engaged with the duty to consult in new and probably unexpected ways, developing policy statements or practices that build upon the duty, but often using it only as a starting point for different discussions. Evolving international legal norms have also come into practice that may have future bearing. Newman offers clarification and approaches to understanding the developing case law at a deeper and more principled level, and suggests possible future directions for the duty to consult in Canadian Aboriginal law.

Author: Grant Huscroft
Publisher: Cambridge University Press
ISBN: 1139952870
Category : Law
Languages : en
Pages : 433

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To speak of human rights in the twenty-first century is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. Proportionality provides a common analytical framework for resolving the great moral and political questions confronting political communities. But behind the singular appeal to proportionality lurks a range of different understandings. This volume brings together many of the world's leading constitutional theorists - proponents and critics of proportionality - to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning. Their essays provide important new perspectives on this leading doctrine in human rights law.

Author: Bob Joseph
Publisher:
ISBN: 9780978162856
Category : Social Science
Languages : en
Pages : 208

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Whether you're just starting out or want to increase your knowledge, Working Effectively with Indigenous Peoples(R) is written to support people in their Indigenous relations endeavours. The fourth edition has additional content and a fresh look inside and out.

Author: Kirk N. Lambrecht
Publisher: University of Regina Press
ISBN: 0889772983
Category : Business & Economics
Languages : en
Pages : 209

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Book Description
Supreme Court of Canada decisions have defined a general framework for the "duty to consult" Aboriginal peoples and accommodate their concerns over natural resource development, but anticipate the details of that framework will be expanded upon in the future. Aboriginal Consultation, Environmental Assessment, and Regulatory Review in Canada offers a paradigm that advances that discussion. It proposes an integrated and robust planning model for natural resource extraction allowing Aboriginal peoples, industry, governments, tribunals, and the Courts to all make contributions to reconciliation in the context of sustainable development and environmental protection. Kirk Lambrecht surveys the law of actual and asserted Aboriginal rights and historical and modern Treaty rights in Canada and discusses the national and international purposes of environmental assessment and regulatory review. He appraises the fundamental principles of Supreme Court of Canada jurisprudence defining aboriginal consultation and accommodation as a constitutional imperative and uses case studies involving the National Energy Board to demonstrate how integrated process has evolved over time. Finally he offers general conclusions on the practical utility, and outstanding challenges, involving an integrated planning paradigm.

Author: Paul Daly
Publisher: Oxford University Press
ISBN: 0192896911
Category : Law
Languages : en
Pages : 321

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A new framework for understanding contemporary administrative law, through a comparative analysis of case law from Australia, Canada, England, Ireland, and New Zealand. The author argues that the field is structured by four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy.