RETHINKING CANADA’S DUTY TO CONSULT DOCTRINE: ACCOMMODATING ABORIGINAL RIGHTS IN THE DEPLOYMENT OF SMALL MODULAR REACTORS (SMRs)

In its foundational case law, the Supreme Court of Canada linked the duty to consult and accommodate to the purpose of reconciliation. However, the Canadian legal rules on the duty to consult, as presently structured and developed by case law, do not adequately fulfill that purpose. The Court has also consistently stated that the duty to consult and accommodate does not include an obligation to reach an agreement. This judicial pronouncement appears to provide the government an opportunity to approach consultation processes in a manner that merely seeks to reach the minimal requirements, without requiring an effective and meaningful dialogue. A minimum-requirement approach to consultation and accommodation would leave the protective and reconciliation purpose of section 35 significantly unsatisfied. Aboriginal engagement for future development should embrace a collaborative approach such that the Crown’s decisions affecting Aboriginal and treaty rights do not amount to a unilateral exercise of power, but rather, promote the goal of reconciliation with Aboriginal peoples. Although the jurisprudence in Haida Nation creates a useful path for achieving the protective and reconciliation purpose of section 35, it remains the case that without extending the Supreme Court’s articulation of the duty to consult process, the fundamental goal of section 35 may actually remain unachieved. This thesis makes this argument using the particular example of the possible development and placement of Small Modular Reactors (SMRs) within the traditional territory of Aboriginal communities. This perspective involves a novel technology as an example of future development, where there is a new opportunity to engage in consultation in better ways than may have occurred with legacy technologies. Building on the Supreme Court of Canada’s cases and academic scholarship, this thesis argues that implementing a standard for consultation that aims at consent would better respect the underlying law on the duty to consult and thereby improve Crown-Aboriginal relations. The thesis makes several recommendations: judicial interpretation that develops factors to assess if consultation has aimed at consent; government co-development of consultation policies and practices with Aboriginal peoples; and improved practices in securing Aboriginal approval through agreements negotiated by project proponents.

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