Consultation Update: Emerging & Persistent Issues Using Haida Nation v British Columbia’s vision of the duty to consult as existing along-side the negotiation process (aiming at a more fulsome settlement of aboriginal rights claims), this paper first provides an overview of the duty to consult and the state of the law. The author then considers the particular issues of the role of tribunals, agencies, and the identification of parties to a consultation. In conclusion, the author discusses the theme of reconciliation that continues to evolve around the duty to consult.

Section 35(1) of the Constitution Act, 1982, the Duty to Consult, and the Government of Alberta’s First Nations Consultation Policy This paper argues that Alberta’s approach to First Nation consultation falls short of fulfilling the province’s constitutional obligation in this regard, but the development and management of public lands and resources appears to operate smoothly and efficiently, without any serious legal challenges or significant delays in this process. After a thorough summary of the current state of Canadian law regarding consultation and accommodation as well as Alberta’s policy and procedures, this paper evaluates Alberta’s policy and practices in light of the state of the law, the current operation of land and resource dispositions, and regulatory processes. Finally, this paper addresses the question of whether the conceptual failings of Alberta’s approach regarding consultation and accommodation should be a matter of serious concern given the absence of significant practical problems in the regulatory system.

These papers were presented at the Constitutional Law Symposium in September 2012.