Scope and Content of Duty to Consult
If a duty to consult is found, the scope and content of the Crown’s duty to consult must then be determined. Generally, “the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.”108 The content of the duty to consult varies with the circumstances.109 Where the breach is relatively minor, the government may only be required to discuss the decision with the affected First Nation. Where there decision raises very serious issues, the government may be required to obtain the full consent of the affected First Nation.110 After correctly determining the extent or scope of its duty to consult, “the Crown must engage in consultation that is adequate in the circumstances.”111 Where a court finds that there has not been appropriate consultation, the court may quash the government’s decision.112