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Part III Indigenous Peoples and the Canadian Constitution, C Indigenous Peoples and the Constitution Act, 1982, Ch.16 The Section 35 Duty to Consult

Dwight Newman

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 29 September 2022

This chapter examines the duty to consult doctrine, which is a particularly significant doctrine under Canada’s section 35 Aboriginal rights clause that is triggered hundreds of thousands of times a year. Since a series of cases in 2004, this doctrine has taken a particular proactive form in which the honour of the Crown leads to government duties of consultation when government decisions potentially impact on Aboriginal or treaty rights. This chapter explains the purposes and origins of this duty, considers its relationship to developing international norms on consultation and FPIC (free, prior, and informed consent), and considers a number of controversies that have emerged on the scope of its application. The chapter also examines the complex relationships of the duty to consult to administrative law contexts before turning to some final comments on potential future directions for the duty.

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