Elyse Loewen

Who Must Be Consulted under Section 35? An Indigenous Feminist Analytical Approach

Introduction

Who must be consulted under section 35? an indigenous feminist analytical approach. Explore who must be consulted under Section 35 of the Constitution Act, 1982. An Indigenous feminist analysis argues for centering Indigenous women and gender-diverse people in consultation processes.

Abstract

Despite extensive law around the duty to consult under section 35 of the Constitution Act, 1982, one issue remains relatively under-explored: how section 35 rights holders should be identified and who among those rights holders must be consulted with. In this article, I undertake an Indigenous feminist analysis of who must be consulted under section 35 in three parts, ultimately arguing that the current consultation framework must change to centre on, rather than exclude, Indigenous women and gender-diverse people (IWGDP). First, current law and practice around consultation demonstrates that both the Crown and industry proponents generally choose to consult with community representatives rather than individual rights holders. Second, focusing consultations on Indigenous leadership and communal rights holders negatively impacts IWGDP and excludes them from essential questions of self-determination to the detriment of Indigenous communities. Third, to remedy this exclusion, government consultation must account for the complexity of and within Indigenous governing structures, in part by ensuring that consultation is occurring with individual rights holders, including IWGDP specifically. Indigenous Peoples could also include IWGDP-specific considerations when setting out protocols for how they are to be consulted with.

Review

This article offers a timely and crucial intervention into the well-trodden, yet persistently complex, legal landscape of the duty to consult under Section 35 of the Constitution Act, 1982. By undertaking an Indigenous feminist analytical approach, the author adeptly identifies and critically examines a fundamental, yet often overlooked, lacuna within current consultation frameworks: the precise identification of rights holders and, more specifically, *who* among them must be consulted. This innovative lens promises to reframe entrenched understandings of consultation by asserting that the current structure systematically marginalizes Indigenous women and gender-diverse people (IWGDP), thereby undermining genuine self-determination and the very spirit of Section 35. The analysis unfolds systematically in three compelling parts. First, the article establishes the existing legal and practical realities, observing that both Crown and industry proponents predominantly favour consultation with community representatives rather than individual rights holders. The second part critically unpacks the detrimental consequences of this practice, demonstrating how focusing consultations exclusively on Indigenous leadership and communal rights holders perpetuates the exclusion of IWGDP from vital discussions pertaining to their communities' futures and self-governance. The author powerfully argues that this exclusion not only harms IWGDP but also impoverishes the decision-making process for Indigenous communities as a whole. Finally, the article proposes concrete, actionable remedies, advocating for government consultation processes that acknowledge and account for the inherent complexity within Indigenous governing structures. This includes a crucial recommendation for ensuring consultation with individual rights holders, with explicit emphasis on IWGDP, and for Indigenous Peoples themselves to embed IWGDP-specific considerations within their own consultation protocols. In its entirety, this article presents a robust and much-needed critique of prevailing consultation practices, offering a powerful reorientation grounded in Indigenous feminist thought. Its strength lies not only in its astute identification of a critical flaw in current frameworks but also in its constructive proposals for systemic change. By foregrounding the experiences and rights of IWGDP, the author compels a re-evaluation of what constitutes meaningful consultation and truly inclusive self-determination. This work is essential reading for legal scholars, policymakers, and Indigenous communities alike, providing invaluable insights that have the potential to significantly enhance the fairness, efficacy, and legitimacy of the duty to consult under Section 35.

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