Shifting the Focus: Viewing Indigenous Consent Not as a Snapshot But As a Feature Film

Abstract

Whether Indigenous peoples have a right to withhold their consent to proposed resource developments on their traditional lands is a topic of much debate at the moment. Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples raises questions about Canada’s existing consultation law, which generally does not require Indigenous peoples’ advance consent to proposed uses of their traditional lands. While the issue of consent is important, the author argues that focusing only on the end point of consultations misses important questions about the capacity of existing consultation processes to promote consensus-building between the state and Indigenous peoples. This article takes a critical look at the structure of current consultation processes in Canada and proposes changes that would strengthen their capacity to manage conflicts effectively, to respect Indigenous values and legal orders, and to advance the long-term relationship between the Canadian state and Indigenous peoples.