Lorne Sossin (Osgoode Hall Law School) has posted The Duty to Consult and Accommodate: Procedural Justice as Aboriginal Rights (Canadian Journal of Administrative Law & Practice, Vol. 23, pp. 93-113, 2010) on SSRN. Here is the abstract:
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This article explores the development and application of the “duty to consult and accommodate” from an administrative law perspective and more broadly considers the promise and limitations of procedural justice through the context of aboriginal rights. The question addressed in this article is the relationship between procedural justice and substantive outcomes in the context of aboriginal rights in Canada. More specifically, by developing a “duty to consult and accommodate” on the part of the Crown with aboriginal communities who have asserted but not yet proven land claims, has the Court advanced the potential for reconciliation, or provided a road-map for Government to avoid the underlying issue of the rights of aboriginal peoples? The article considers to what extent the duty relies on administrative law concepts such as the duty of fairness and the standard of review of reasonableness and whether this is appropriate.
This analysis is divided into three sections. The first section explores the idea of procedural justice within the context of the judicial role in dispute resolution. The second section examines the duty to consult and accommodate. The third and concluding section considers the implications of procedural justice for reconciliation between the state and aboriginal communities. The article concludes that while procedural justice holds considerable promise as a purpose, reconciliatory procedural mechanism, its limitations increase as time passes without significant procedural enhancements such as the Crown’s “duty to consult and accommodate” aboriginal communities leading to more just outcomes.