The two-part test for determining whether a duty to consult has been triggered was set out in Haida Nation v British Columbia.[1]The Crown must (1) have real or constructive knowledge of the potential existence of Aboriginal rights or title, and (2) contemplate conduct that might adversely affect it.[2] The purpose of consultation is to work towards reconciliation of Aboriginal and Crown interests as demanded by section 35 of The Constitution Act, 1982.[3] The duty to consult is grounded in the honour of the Crown, which exists separate of any treaty obligations.[4] Although only assertion, rather than proof, of existence of Aboriginal title is required to necessitate a duty to consult on the part of the Crown, the extent of the duty will vary according to the strength of the prima facie claim.[5] Strong proof of Aboriginal rights or title that have the potential to be seriously impacted require a corresponding duty of deep consultation and possibly accommodation, while weaker claims may only require a mere duty of notice.[6] Consultation must occur early on to ensure that Aboriginal concerns are addressed, and if appropriate, accommodated.[7] While there is no duty to agree, the honour of the Crown requires that it act in good faith at all times and have a genuine intention to address Aboriginal concerns. Aboriginal parties must also act in good faith and may not take unreasonable positions to sabotage the Crown’s attempts to come to a mutual understanding.[8]

If the duty to consult is not met Aboriginal parties can pursue a variety of remedies, including interlocutory injunctions, damages, or an order complete consultation before proceeding with the proposed government conduct.[9] Although injunctions can be pursued absent of any the duty to consult, they were identified by the Supreme Court in Haida as often contrary to the constitutional goal of reconciling Crown-Aboriginal interests.[10]