Assessing the Duty to Consult finds that the constitutional obligation known as the duty to consult creates uncertainty for resource development projects because the specific requirements for consultation are currently determined on a case by case basis. The federal government could provide greater certainty for major resource development projects—such as pipelines—by establishing clear consultation guidelines and recognizing Indigenous property rights.
Mining and Aboriginal Rights in Yukon: How Certainty Affects Investor Confidence finds that the legal certainty established by modern land claim agreements in Yukon — once seen as an advantage in attracting new investment — is now being undermined by Canadian courts. Specifically, the courts have forced unforeseen obligations upon governments and third-parties, beyond the requirements already spelled out in modern treaties, thus leading to a decline in investor confidence. The study warns that Yukon’s experience could be a harbinger of uncertainty right across the country and particularly British Columbia.