The Duty Consult as the Authority to Recognize
A Continued Presumption of Crown Sovereignty
This essay performs an analysis of the duty to consult and accommodate principle, a legal mandate that requires the Canadian state to consult and accommodate Indigenous nations when taking action that might interfere with established Aboriginal or treaty rights. Though Tsilhqot’in Nation v. British did make progress in terms of providing Indigenous peoples with more authority in the consultative process, the power still ultimately remains with the Crown in dictating whether or not the interference on Aboriginal or treaty rights is justified. That is, the Indigenous nation is invited to participate in the process, but they are not granted the authority to truly determine what happens on their land. In light of this limitation, this essay claims that this principle still operates within the presumption of Crown sovereignty, and therefore ultimately fails to confer upon the Indigenous nation their rightful political independence. In order to truly reconcile the relationship between Indigenous nations and the Canadian state, this essay concludes that it is necessary to establish a relationship premised on the rightful treaty-federalist framework.
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