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- Title
COMPARING ABORIGINAL AND OTHER DUTIES TO CONSULT IN CANADIAN LAW.
- Authors
CARVER, PETER
- Abstract
This article compares recent Aboriginal rights and labour relations court decisions to assess the way the Canadian jurisprudence has conceptualized the duty to consult. While traditionally the duty to consult has been considered a constitutional duty, enshrined in section 35(1) of the Constitution Act, 1982 and section 2(d) of the Canadian Charter of Rights and Freedoms, the author suggests that courts have had great difficulty conceptualizing this duty as a constitutionally required process. The author's analysis reviews the sources and purposes of constitutional duties to consult and the hurdles the courts have faced in applying the duty meaningfully, and drawing on concepts from administrative law, offers a tentative solution to the problem of making consultative practices effective.
- Subjects
CANADA; ABORIGINAL Canadians -- Legal status, laws, etc.; LAW; MONARCHY; DUTIES of kings &; rulers; RIO Tinto Alcan Inc.; FREEDOM of association; ACTION &; defense cases; ACTIONS &; defenses (Law)
- Publication
Alberta Law Review, 2012, Vol 49, Issue 4, p855
- ISSN
0002-4821
- Publication type
Article
- DOI
10.29173/alr108