Abstract

The advancement of a constructive Aboriginal agenda in the form of rights-based litigation since the recognition and affirmation of Aboriginal and treaty rights in the Constitution Act, 1982 has led to the creation of the legal doctrine of the duty to consult and accommodate. As a discipline on Crown decision-making, the legal doctrine of the duty to consult and accommodate presents a prospective pathway for the reconciliation of Crown and Aboriginal interests in resource development. While maintaining promise as a framework to provide for the full and fair consideration of Aboriginal interests in regulatory reviews, administrative decision-makers representing the Crown have made the management of legal liabilities the principal policy objective of consultation and accommodation. As a result, there is minimal incentive for administrative decision-makers to deviate from highly legalistic interpretations of common law. This standard operating procedure is steadily reinforced, as the Crown, able to efficiently reduce the risk of litigation by First Nations, permits projects without consideration of the continued and incremental diminishment of Aboriginal interests in lands and resources. The purpose of this thesis is to deconstruct processes of consultation and accommodation embedded in environmental assessment processes associated with major resource projects as a means to identify institutional arrangements that promote and provide for the full and fair consideration of Aboriginal interests in Crown decision-making.