An Encomium for Consideration: Indigenous Project Support and the Grassy Mountain Public Interest Determination

Abstract

This paper argues for greater and more courteous consideration of Indigenous concerns,
particularly where Indigenous nations express support for a natural resource project, and uses
the Grassy Mountain Coal Project as a backdrop for the discussion. I consider whether a duty to
consult could apply to a decision not to approve a project and I explore potential rights upon
which such a duty could be anchored. I argue that unidirectional application of the duty to
consult risks leaving some rights without procedural protections, and, accordingly, a broader
application of the duty to consult is warranted. I then discuss the substantive formulation and
expression of public interest determinations and make recommendations about how
administrative decisionmakers can better communicate their consideration of Indigenous
concerns.