Consultation and Cumulative Effects: Is there a role for the duty to consult in addressing concerns about over-development?

We have seen many changes to the consultation and accommodation landscape since the seminal decisions of Haida Nation v. British Columbia (Minister of Forests)and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director). One predominant response to these decisions has been the characterization of the duty to consult and accommodate as a potential ?win-win? for both proponents and Aboriginal communities. This optimistic view of the duty to consult and accommodate is not unfounded. There have been many ?wins? - instances where consultation has led to more responsible development, improved risk management, reasonably equitable sharing of resources, empowerment for affected communities, protection for Aboriginal and treaty rights, and other outcomes that are satisfactory to all parties. However, consultation does not always proceed smoothly. Despite Haida Nation?s promise that consultation offers a better means of achieving reconciliation, Aboriginal parties continue to turn to the courts for ?all or nothing? solutions like injunctions.3 There are many reasons why consultation might not result in a ?win-win? solution in any given case. In this article, we will consider one factor that can create difficulties in the consultation process: the question of the cumulative effects of historic and present development.