by Bruce McIvor, Ph.D., First Peoples Law Corporation
In 2017 the Supreme Court released four decisions which elaborated on the substance and application of the duty to consult and accommodate (Clyde River (Hamlet) v. Petroleum Geo-Services, 2017 SCC 40; Chippewas of the Thames First Nation v. Enbridge Pipelines, 2017 SCC 41; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 and Ktunaxa Nation v. British Columbia, 2017 SCC 54).
Based on these four decisions, below I summarize the Court’s current thinking on the duty to consult on specific issues and offer my own thoughts on what it means for the present and future of the duty to consult.
Delegation
Background on Delegation
Governments, provincial and federal, delegate many decisions to tribunals which, like courts, consider evidence and hear submissions from applicants and intervenors before rendering their decisions. Soon after the Supreme Court’s 2004 Haida Nation decision the question arose as what, if any, responsibility did these administrative tribunals have to ensure that the duty to consult is fulfilled.
The first major legal pronouncements on the issue were from the B.C. Court of Appeal in 2009 with Kwitwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68 and Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67. The latter decision was appealed to the Supreme Court and became Rio Tinto v. Carrier Sekani Tribal Council, 2010 SCC 43.
Delegation Prin ...
