ABSTRACT
In November 2003, a Mi’kmaq elder from the community of Eskasoni launched a court action seeking to stop seismic testing in the waters off Cape Breton. He claimed that the government of Nova Scotia had failed to consult with his First Nation before issuing an approval to allow the testing by Corridor Resources, as part of its oil and gas exploration program.1 Aboriginal communities throughout Canada assert they must be consulted before governments or corporations make decisions that could impair the constitutional rights of Aboriginal peoples. Invocation of the duty to consult as an independent source of legal entitlement is increasing. This chapter explains why these claims are being made and how they may operate in the specific context of aquaculture. Our objective is to illuminate the historical and political context of the duty to consult, and to canvass the responses of courts and governments to date. Unfortunately, the law is at a nascent stage of development, as the courts are struggling to give substance and structure to this novel doctrine.2 Nonetheless, it is possible to identify basic themes and to outline the contours of the duty to consult as it presently is being defined by courts in response to urgent and complicated litigation.
