Beyond the duty to consult? Aboriginal equity participation and reframing consultation practice in Canada

Abstract

Aboriginal consultation in Canada is a constitutionally grounded process that has generated persistent dissatisfaction among all participating parties (Aboriginal groups, government, and industry), despite procedural compliance. This thesis asks whether consultation goals must be pursued through the formal process or may also be pursued through arrangements developed beyond it. Using frames and framing theory, and extending the Political, Legal, and Economic frames Boyd and Lorefice (2018) derived from organizational documents, the study reads Supreme Court of Canada jurisprudence alongside a hermeneutic case study of the Cascade Power Project, the first transaction supported by a loan guarantee from the Alberta Indigenous Opportunities Corporation. The methodology adapts Günter Figal’s new-realist hermeneutics, which preserves the exteriority of the interpreted object and so holds interpretation contestable; this appears to be its first application to Aboriginal consultation. Evidence comprises semi-structured interviews with three professionally situated participants, read against documentary records; the analysis, therefore, addresses institutionally articulated goals rather than community-level experience. It suggests that consultation operates less as a mechanism of reconciliation than as a constitutional baseline that stabilizes obligations and expectations across the three frames without aligning the goals animating them. Extra-procedural arrangements differ in structure: post-Taku engagement with environmental assessment pursued one frame’s objectives outside the formal process and intensified interaction across the others, whereas the Cascade agreement addressed political participation, economic benefit, and legal stability together, recalibrating those relationships. The thesis derives economic, legal, and political preconditions under which equity participation may function as an outside-the-system mechanism. Its contribution is interpretive: a participant-centred account of consultation in a field dominated by legal and doctrinal analysis.