A study on the Canadian mining industry and the potential for the “Duty to Consult” as a pathway towards reconciliation with Indigenous Peoples: lessons for Brazil
Date
2021-04-19
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Abstract
Using a reconciliation framework, this research examines select Canadian case law and the
evolution of the “duty to consult” to explore the potential lessons for resource extraction in
Brazil. It conducts an analysis of the legal precedents that exist in Canadian common law as they
relate to Indigenous communities and apply the framework drawn to the resource extraction
process with the hope of determining best practices. In Canada, ongoing discussions and
challenges about the importance of land to Indigenous Communities, their culture and traditions
are commonplace, but in Brazil, legal precedents and policies do not appear as well developed.
Indigenous land claims and resource extraction decisions at the countries’ top courts are of
critical importance to both nations given that mining development impacts upon the social,
economic, and cultural aspects of Indigenous Peoples in both countries. This research targets
legal policies, commentary and Court decisions in Canada relating to Indigenous land and the
mining industry, with an emphasis on constitutional law, to compare aspects of land claims and
constitutional rulings and how they have influenced social policy on Indigenous lives in regards
to reconciliation. There are constructive lessons for the Brazilian government emerging from the
comparison regarding how Canadian constitutional law has framed Indigenous rights with regard
to resource development. In this research, I have found in my analysis that the “duty to consult”
it’s an important key element in the path for reconciliation with the Indigenous communities.
This study revealed the influence of colonial social structures that still persevere and directly
affect Indigenous communities in contemporary society.
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Keywords
“Duty to Consult”, Indigenous Peoples, land, reconciliation, resource extraction