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.