캐나다의 원주민집단 보호를 위한 정부의 사전 협의·배려의무 법리에 관한 고찰

From the beginning of the foundation of the nation, Canada was a multicultural society, consisting of Aboriginal peoples, the English and the French. Since then, Government of Canada focused on how to treat the Aboriginal peoples and to build and maintain relationship with Aboriginal groups. After much consideration, it established and implemented multicultural policies aimed at providing special protection for Aboriginal peoples, which fostered reconciliation of prior Aboriginal occupation and current Crown sovereignty. * This research was supported by the Korea University Graduate School Junior Fellow Research Grant. ** Researcher, Legal Research Institute of Korea University, Ph.D Candidate, Department of Law, the Graduate School of Korea University Aboriginal communities are minority groups who are vulnerable to defending their rights in the face of the unilateral administrative action. Moreover, their culture and lifestyle are closely related to their lands or territories and the natural environment which can never be replaced once damaged. The Supreme Court of Canada developed the duty to consult and accommodate doctrine. It requires that federal and provincial governments have a dialogue with Indigenous groups about contemplated government actions or decisions that might have a negative impact on Aboriginal and treaty rights. The goal is to listen to the views and concerns of affected Indigenous groups and, where necessary and possible, modify the action or decision to avoid unlawful infringement of those rights. As a result, the duty to consult and accommodate can be viewed as means to provide the constitutional protection of cultural rights to Aboriginal peoples who are cultural minorities.