Revitalizing Rights: Practicable Proposals for the Law of Section 35 Consultation and Environmental Assessment
Abstract
The duty to consult and accommodate Indigenous peoples under section 35 of the Constitution Act, 1982 is frequently fulfilled through environmental assessments. However, environmental statutes and the common law do not always properly reflect the constitutional nature of the duty, nor do they ensure that decisions are environmentally sound. In light of these shortcomings, this paper recommends three reforms: (1) a revision of the federal Impact Assessment Act; (2) the codification of environmental rights; and (3) a change in the standard of review applied to administrative decisions stemming from environmental assessments. These adjustments would not subvert the current legal framework. Nonetheless, they have the potential to assist in advancing the related goals of sustainable development and reconciliation between Canada and Indigenous peoples.
The opinions expressed in APPEAL are those of the authors and do not necessarily represent those of the Editors or the Faculty of Law. APPEAL is a refereed review. While every effort is made by the Publisher and the Editorial Board to ensure that APPEAL contains no inaccurate or misleading data, opinion or statement, the information and opinions contained within are the sole responsibility of the authors. Accordingly, the Publisher, the Editorial Board, the Editors and their respective employees and volunteers accept no responsibility or liability for the consequences of any inaccurate or misleading information, opinion or statement.
Copyright © (2018) Appeal Publishing Society.
All rights reserved. Requests for permission to reproduce or republish any material from anyedition of Appeal should be sent to Appeal Publishing Society.
