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In conducting negotiations with Aboriginalpeoples, government is under an obligationto uphold the “honour of the Crown” (e.g., tonegotiate in good faith and to avoid sharpdealings).The Supreme Court of Canada, in itsdecisions, has encouraged the settlement oftreaty and other Aboriginal rights and claimsby negotiation rather than litigation. Inresponse, the governments of NewBrunswick, Nova Scotia and Prince EdwardIsland (collectively, the “Maritimes”) andCanada and have undertaken discussionswith Mi'kmaq and Maliseet groups in theirprovinces.Several agreements of a preliminary andprocedural nature have been signedbetween the Mi'kmaq and the Nova Scotiaand Prince Edward Island governments.Although the federal government did takesteps to speed up the negotiation process in2012, it is unlikely that these processes willconclude in the near future.In Newfoundland and Labrador, the federaland provincial governments and the Inuit ofLabrador, after 15 years of negotiations,successfully concluded a comprehensiveagreement that covers a large area ofnorthern and eastern Labrador in 2005.Negotiations are still underway with the InnuNation of Labrador.AN OVERVIEW OF THE DUTY TOCONSULTThe Supreme Court of Canada has heldthat the “honour of the Crown” imposes onthe federal and provincial governments aduty to consult (“DTC”) with Aboriginalgroups in respect of any proposed actionthat could infringe upon a group’s Aboriginalrights, treaty rights, and potential orestablished Aboriginal title. The DTC hasgiven rise to a developing body of case lawinterpreting its exact content and meaning;mining and hydro projects have beenespecially contentious.The case law requires the federal andprovincial governments to give priority toAboriginal and treaty rights and, as such,the duty to consult exists independentlyfrom other public consultation requirements.This means that simply including Aboriginalgroups in a public review process in somecircumstances may not be sufficient todischarge the governments’ obligation toconsult, and a separate and distinctconsultation process may be required.There are four main steps to the DTCprocess: the trigger; determination of thescope of the DTC; the actual process ofconsultation; and accommodation. Whateach step of the process will look likedepends on the facts of the case, the natureof the project, the parties’ interest innegotiating, etc.There is a low threshold to trigger the DTC.In general, this will happen when the Crowncontemplates certain conduct and it has theactual or constructive knowledge that thisconduct might “adversely affect anAboriginal claim or right,” even if the claimor right has not yet been established in priorcourt proceedings. The scope of the duty isvariable, however, and in circumstanceswhere rights or title are claimed, but not yetproven in court, the manner and degree ofconsultation required may depend on thestrength of the Aboriginal group’s claim. Inother words, there is a “spectrum” ofconsultation and accommodation.In the specific context of Aboriginal title, thespectrum of required Crown conduct mayAboriginal Law 151