Moving Backwards: Does the Lack of Duty to Consult Create the Right to Infringe Aboriginal and Treaty Rights?

The duty to consult and accommodate has become one of the most important principles of Canadian Aboriginal law. Since Haida Nation v British Columbia (Minister of Forests), the Supreme Court of Canada has sought to clarify the boundaries of consultation to ensure that developments affecting Aboriginal rights proceed with a degree of certainty. It is clear that the Crown bears the responsibility for consultation and a failure to consult may result in overturning or staying decisions of the Crown until consultation has taken place. Such consultation is grounded in the honour of the Crown, which is a core constitutional principle informing all interactions between Aboriginal peoples and the government. However, what happens if an entity that is not the Crown ? a municipality or a private business ? does not consult? If the entity is authorized by statute to act in ways that infringe the rights of Aboriginal people, what will the courts do?