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 usesthe Grassy Mountain Coal Project as a backdrop for the discussion. I consider whether a duty toconsult could apply to a decision not to approve a project and I explore potential rights uponwhich such a duty could be anchored. I argue that unidirectional application of the duty toconsult risks leaving some rights without procedural protections, and, accordingly, a broaderapplication of the duty to consult is warranted. I then discuss the substantive formulation andexpression of public interest determinations and make recommendations about howadministrative decisionmakers can better communicate their consideration of Indigenousconcerns.