Revitalizing Rights: Practicable Proposals for the Law of Section 35 Consultation and Environmental Assessment
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.
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