An unsuitable integration: the duty to consult and environmental assessments in Canada

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University of New Brunswick


The purpose of this thesis is to analyze the integration of the duty to consult and the environmental assessment process and exhibit the unsuitable nature of this integration. The duty to consult is a reconciliatory measure, and its constitutional nature warrants conditions that are not present within the environmental assessment process. Implementation of the duty through the EA process is damaging to the duty, both jurisprudentially and procedurally. The duty to consult is procedurally and substantively ambiguous in nature, with the responsibility of its development being left to the courts. The EA process itself is proven to be flawed, and, due to issues including a penchant for over-delegation, confusion of responsibility, prioritization of efficiency over the protection of rights, short timeframes, lack of cooperation, and an ignorance of reconciliatory approaches, the EA process as it currently operates is not a suitable process within which to integrate the constitutional duty to consult.