Exploring Alternatives to the "Consultation or Consent" Paradigm

Type
Literature
Publication
Jason Searle, Exploring Alternatives to the "Consultation or Consent" Paradigm, 6 Mich. J. Envtl. & Admin. L. 485 (2017).
Year Published
2017
Organization
NGO
Description

The Dakota Access Pipeline brought the question of what adequate tribal consultation requires to the forefront. Some would argue that consultation is a weak standard and that only adopting a new standard of free, prior, and informed consent can guarantee tribes greater control and respect. However, the “consultation or consent” paradigm does not take into account important sources of law that do not fit under “consultation” or “consent” and yet could be valuable in strengthening tribes’ claims in the absence of a consent standard.