IV.

Respecting Aboriginal Rights and Jurisdictions

471

that the duty to consult applies to decisions that may be excluded by the legislative exemption under a duty of fairness, an issue that will be pursued in greater detail further below.103
Past Crown conduct and past impacts or infringements of Aboriginal rights will not, on
their own, trigger the duty to consult. This issue was recently clarified in Rio Tinto Alcan, in
which the Carrier Sekani Tribal Council First Nations argued that the continued negative
impact on their Aboriginal fishing rights caused by a dam built on the Nechako River, British Columbia, in the 1960s gave rise to a duty to consult. The dam supported a power plant
for an aluminum smelter and B.C. Hydro purchased the extra power produced by the power
plant. When the energy purchase agreement between B.C. Hydro and Rio Tinto Alcan came
up for renegotiation and approval, the Carrier Sekani argued that the B.C. Utilities Commission had an obligation to ensure that there was adequate consultation before approving
the renegotiated agreement. The Supreme Court disagreed, holding that because the renegotiation of the energy purchase agreement created no new impact on the fishing rights in
issuethat is, it did not further alter the water levels in the riverthe duty to consult was
not triggered in this case. The limit on the threshold of the duty drawn in Rio Tinto Alcan
does not preclude the consideration of cumulative impacts of development where, unlike in
Rio Tinto Alcan, the current Crown conduct can be less clearly detached from the adverse
effects of past Crown conduct. However, it is unclear and contested how to define the scope
of the duty to consult in such cases, particularly when past impacts must be addressed in the
consultation process and accommodated, or whether the consultation process should only
seek to address the impact of the most recent Crown conduct.104
Rio Tinto Alcan clarifies the forward-looking nature of the duty, with the Court addressing historical grievances by allowing that past breaches of the duty to consult may give rise
to a damages remedy.105 This forward-looking direction is a key indication of how the Supreme Court envisions the role of the duty to consult and accommodate in supporting
reconciliation.106 It is also a key issue for the development of Aboriginal administrative law,
which requires robust procedural safeguards capable of ensuring that Aboriginal perspectives are respected within Crown decision-making processes: perspectives that may not
accept the separation of past or future from current resource management decisions as a
matter of law, justice, or reconciliation.

103 See, generally, Mullan, supra note 78 at 128-29.

104 For example, contrast Upper Nicola Indian Band v. British Columbia (Minister of Environment), 2011 BCSC
388, [2011] B.C.J. No. 559 (QL) (Rio Tinto Alcan, supra note 92, was relied on to exclude consideration of the
original impacts of a 1960s transmission line right-of-way in the consultation process around a proposed new
high voltage line to run parallel to the old one) and West Moberly First Nations v. British Columbia (Chief
Inspector of Mines), 2011 BCCA 247, 18 B.C.L.R. (5th) 234 [West Moberly First Nations], leave to appeal to
the S.C.C. refused, 2012 CanLII 8361 (S.C.C.) (Rio Tinto Alcan distinguished to permit consideration of historical impacts of exploration on the Burnt Pine caribou herd in consultations about licensing decisions that
would allow the expansion of coal exploration activities. The consideration of historical impacts is seen as
essential to a proper understanding of the potential impacts of the present licensing decision).
105 Rio Tinto Alcan, supra note 92 at para. 49.
106 For a discussion of the reconciliation under s. 35, see Mark D. Walters, The Morality of Aboriginal Law (2006)
31 Queens L.J. 470; Borrows, Indigenous Constitution, supra note 3; Slattery, supra note 81; and Kent McNeil,
Reconciliation and Third-Party Interests: Tsilhqotin Nation v. British Columbia (2010) 8 Indigenous L.J. 7.

472

Chapter 13 In Search of Aboriginal Administrative Law

Parallel to the duty of fairness, the duty to consult is easily triggered. And again, parallel
to the duty of fairness, the broad application of the duty is balanced by the variable content
of the duty that is managed through a contextual spectrum analysis. The content of the duty
to consult is determined in relation to the preliminary assessment of the strength of the rights
claim (where unproven) and the seriousness of the potential adverse impacts of the Crown
action on the exercise of those rights.107 Rights claims that appear tenuous to the Crown or
less intrusive impacts such as a short disruption of harvesting practices will still trigger the
duty but will attract only light consultation obligations, such as mere notice. Strong rights
claims and/or serious impacts on the exercise of those rights attract deep consultation
obligations, including accommodation. The overall aim of this spectrum analysis is to ensure that the content of the duty accords with the honour of the Crown in the particular
setting in which the duty has been triggered.
With the exception of accommodation, the content of the duty to consult is very similar
to the procedural requirements required to satisfy a right to be heard. The content of the
duty to consult is thus most like the duty of fairness at the lighter end of the spectrum, as
illustrated in Little Salmon/Carmacks. The duty in Little Salmon/Carmacks was triggered by
an application for an agricultural land grant that affected one third of 1 percent of a Little
Salmon/Carmacks First Nation members trapline.108 In the Courts assessment, this was a
small impact meriting consultation obligations at the lower end of the spectrum. Although
the First Nation argued that its interests had not been taken seriously and required accommodation, the Court found that the duty to consult was satisfied by notice of the decision
and opportunities to state its concerns to the Yukon government decision-makers involved
in the decision. As Nigel Bankes observed, the content of consultation in Little Salmon was
no greater than that which would be provided by the application of standard principles of
administrative law.109
The potential requirement of accommodation is where the content of the duty to consult
parts company with the content of the duty of fairness most significantly. Characterized as a
substantive rather than a procedural requirement, Haida Nation was clear that accommodation is only required where appropriate, as determined through the spectrum analysis.110
The parameters of accommodationwhen it is required and what constitutes adequate accommodationcomprise one of the least-developed and most controversial areas in the
duty to consult jurisprudence. As described in Haida Nation, accommodation with respect
to at least unproven Aboriginal rights is about seeking compromise through good faith
efforts to understand each others concerns and move to address them.111 As a result, consultation and accommodation does not have to result in agreement. Instead, Aboriginal

107 Haida Nation, supra note 12 at para. 39.

108 Little Salmon/Carmacks, supra note 13 at para. 21.
109 He also comments that [t]his impoverished view of the duty to consult is hardly likely to contribute to the
constitutional goal of inter-societal reconciliation (Nigel Bankes, Little Salmon and the Juridical Nature of
the Duty to Consult and Accommodate, online: ABlawg.ca archives <http://ablawg.ca/2010/12/10/littlesalmon-and-the-juridical-nature-of-the-duty-to-consult-and-accommodate> [Bankes, Little Salmon]).
110 See e.g. Haida Nation, supra note 12, at paras. 10, 20, 37 and others.
111 Ibid. at para. 49.

IV. Respecting Aboriginal Rights and Jurisdictions

473

parties consent to the contemplated conduct will be required only in rare cases in relation
to established rights.112 In Delgamuukw, for example, the possibility of a consent requirement was contemplated in relation to the regulation of harvesting activities on recognized
Aboriginal title land.113
The lack of a consent requirement has been criticized as illustrative of the assimilative
tendencies of the duty and how the structure of the duty is not capable of respecting Aboriginal perspectives and aspirations.114 For many Aboriginal parties, the lack of a consent requirement is seen as inconsistent with their laws and jurisdiction over their lands, which
require them to be the stewards of their lands.115 In addition, Aboriginal communities point
out that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),
which Parliament formally endorsed in 2010,116 sets the consultation standard as the free,
prior and informed consent (FPIC) of indigenous peoples to activities affecting their lands
or territories (article 32). The scope and meaning of FPIC is being developed in international law in a manner that might usefully be brought to bear on the Canadian approach
to consultation and consent, but these international commitments and developments have
yet to be referred to by Canadian courts.117
Consent and accommodation are not contentious in every consultation process: Aboriginal parties may support the contemplated activities; accommodation of their concerns may
be possible through changes to the planned activities; or compensation may be available for
the anticipated infringements or impacts on rights.118 Some cases are hard cases in which
the balancing and compromise envisioned by the Court in Haida Nation are simply not
available. In West Moberly First Nations, for example, the expansion of the coal exploration
activities in issue would negatively impact the core habitat of the already threatened Burnt
Pine Caribou Herd.119 The majority of the B.C. Court of Appeal accepted that the devastation of the Herd and its habitat also seriously impacted the First Nations Treaty8 hunting
rights, but found less common ground on whether accommodation should address the past

112 Ibid. at para. 48.

113 Delgamuukw, supra note 82 at para. 168.
114 Gordon Christie Developing Case Law: The Future of Consultation and Accommodation (2006) 39 U.B.C.
L. Rev. 139 [Christie (2006)].
115 See e.g. Treaty 3s Manito Aki Inakonigaawin or Great Earth Law, online: The Official Website of the Grand
Council of Treaty #3 <http://www.gct3.net/grand-chiefs-office/laws-and-policies>.
116 For Canadas position, see Frequently Asked Questions (on Canadas endorsement of the UNDRIP), online: Aboriginal Affairs and Northern Development Canada <http://www.aadnc-aandc.gc.ca/eng/
1309374807748>.
117 See e.g. Saramaka People v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), November 28,
2007, Series C No. 172 IACHR 5, esp. paras. 133-34. For a helpful discussion of FPIC, see Simons & Collins,
supra note 15. For the treatment of international human rights law in Canadian administrative law, see Gerald Heckman, Chapter 14, The Role of International Human Rights Norms in Administrative Law.
118 The law, of course, does not always dictate the approach taken by the parties. In many cases, the Crown and/
or developer are willing to consider some forms of accommodation, or may be willing to satisfy Aboriginal
legal requirements, where the duty to consult law may not require it. For a discussion of related consultation
practices, see Newman, supra note 86, Chapter 4.
119 West Moberly First Nations, supra note 104.

474

Chapter 13 In Search of Aboriginal Administrative Law

impacts or just the present exacerbation. The trial judges order had included a specific accommodation measurea rehabilitation plan for the caribou herdthat took past harms
into account. In the trial judges view, the rehabilitation plan was the only accommodation
measure that would be reasonable in light of the past harms and the state of the Burnt Pine
Herd, and so ordered it specifically. The majority at the Court of Appeal reversed this order,
agreeing that consultation had been inadequate and remitting the matter for further consultation, but without agreeing on whether an accommodation measure addressing past harms
would ever be appropriate.120
Judicial reluctance to order specific accommodation measures, illustrated in West
Moberly First Nations, is due in part to the reasonableness standard of review and the deference this standard demands. Little Salmon/Carmacks clarified that no deference is owed to
decision-makers in determining the legal and constitutional limits of their discretion, and
thus: [a] decision maker who proceeds on the basis of inadequate consultation errs in law.
Within the limits established by the law and the Constitution, however, the [decisionmakers] decision should be reviewed on a standard of reasonableness121 in accordance
with Dunsmuir v. New Brunswick.122 This restatement is potentially discordant with the direction from Haida Nation, where McLachlin C.J.C. stated that The process itself would
likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; government is required to make reasonable efforts to inform and consult. This
suffices to discharge the duty.123 The potential discordance lies in whether the process of
consultation is part of the adequacy of consultation or part of the decision, as delineated in
Little Salmon/Carmacks. In Haida Nation, McLachlin C.J.C. also discussed the possibility of
deference at other stages of the review as a result of the factual nature of the initial assessments involved in the determinations of existence and scope of the duty and that therefore
a degree of deference to the findings of fact of the initial adjudicator may be appropriate.124
McLachlin C.J.C.s comments in Haida Nation suggest that there may be more opportunities for deference in review of consultations than is apparent from the statement in Little
Salmon/Carmacks. Moreover, interpretation of the standards of review applicable since
Little Salmon/Carmacks confirm that lower courts still see room for deference to the Crown
in the process of consultation and not just with respect to the outcomes.125 This issue warrants further attention, which we pursue below through a comparison to the standards of
120 Chief Justice Finch refrained from deciding whether the rehabilitation plan was an appropriate accommodation measure but left it open as a possibility pending further consultation. Justice Hinkson, concurring in the
result, found the rehabilitation plan to be inappropriate because accommodation should not be concerned
with remedying harm caused by past events (ibid. at para. 180). Justice Garson wrote in dissent but agreed
with Justice Hinkson that accommodation should be causally connected to the present contemplated
conduct.
121 Little Salmon/Carmacks, supra note 13 at para. 48.
122 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir].
123 Haida Nation, supra note 12 at para. 62.
124 Ibid. at para. 61.
125 West Moberly First Nations, supra note 104 at paras. 141 (Finch C.J., concurring), 174 (Hinkson J. concurring), and 189-198 (Garson J., dissenting, but not on this point); Adams Lake Indian Band v. British Columbia, 2011 BCSC 266 at para. 52 [Adams Lake], appeal in process, BCCA 38926.

IV. Respecting Aboriginal Rights and Jurisdictions

475

review applied to matters of procedural fairness, followed by discussion of two other areas
of convergence (and divergence) between the duty to consult and administrative law.

B. Standard of Review: Procedure, Substance, and

Specialized Decision-Makers
As discussed by Audrey Macklin in Chapter 9, Standard of Review: Back to the Future?, the
standard of review applied by a court in its review of an administrative decision-maker
depends on the nature of the first decision-maker, his or her expertise on the issue in question, and contextual factors that suggest that more or less deference is owed in order to ensure the proper roles of legislatures, executives, and courts are respected. The courts retain
the expertise on questions of (common-law) procedural fairness, and so the standard of
correctness applies. On questions of law, however, the majority in Dunsmuir indicates that
deference may be owed where the question of law, or mixed fact and law, falls within the
decision-makers particular expertise and the necessary legislative signals, especially a privative clause, are present.126 One further feature of standard of review analysis worth bearing
in mind originates in the parameters of appellate review: the reluctance of appellate courts
to interfere with the findings of fact of the initial trier of fact, in light of their position of
relative disadvantage in assessing the credibility of witnesses giving oral testimony.
How do these concerns behind the standards of review play out in relation to the duty to
consult? Beginning with what is clear, the application of the deferential standard to the
outcome of consultation is consistent with judicial review in other contexts. The final result
of the consultation processthe Crowns decision regarding how to proceed, including
choices around appropriate accommodationare understood in the duty to consult jurisprudence as substantive outcomes. With respect to the outcomes, the standard of reasonableness as described in Dunsmuir applies: reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.127 Interestingly, in
West Moberly First Nations, Chief Justice Finch elaborated on the idea of meaningfulness
that attaches to the reasonableness standard in this context: A reasonable process is one
that recognizes and gives full consideration to the rights of Aboriginal peoples, and also
recognizes and respects the rights and interests of the broader community.128
Echoing debates surrounding reasonableness review of discretionary decisions infringing Charter rights, several commentators have critiqued the application of the reasonableness standard in light of the constitutional nature of the interests at stake. They argue that

126 Dunsmuir, supra note 122 at paras. 53-55.

127 Ibid. at para. 47.
128 Supra note 104 at para. 141. See also para. 154: the consultation was not meaningful and was therefore not
reasonable. Nigel Bankes suggests that consultation outcomes should be assessed against those described in
Halfway River, supra note 82 at para. 160: that the representations of Aboriginal communities in consultation
be seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action
(Bankes, Little Salmon, supra note 109).

476

Chapter 13 In Search of Aboriginal Administrative Law

greater judicial scrutiny of the resulting accommodation of Aboriginal parties would better
implement protection for Aboriginal rights and better serve the reconciliation purposes of
Aboriginal law.129 However, the courts have been consistent in their application of the reasonableness standard to the outcomes of consultation. This approach follows from Haida
Nation, which treats reconciliation as better served by fostering an improved dialogue while
retaining the Crowns responsibility to make land-use decisions and balance competing interests in the process. This approach is also consistent with Dor v. Barreau du Qubec,130
discussed elsewhere in this text, which confirms the appropriateness of reasonableness review of discretionary decisions where constitutional rights are at stake.
Where there is less certainty, however, is with respect to whether deference also creeps
into the review of the process of consultation. Binnie J. in the Little Salmon/Carmacks decision, describes the issue to be reviewed on a correctness standard as one of adequate
consultation. By contrast, consultation cases both before and after Little Salmon/Carmacks,
have applied the reasonableness standard to the process of consultation and [whether] accommodation is unreasonable.131 In review of procedural fairness, however, the process or
actions of the decision-maker are included within the concept of adequate procedures.
Under the Baker framework, consideration of and respect for the procedural choices of
decision-makers is part of the determination of the content required by the duty of fairness.132 As Grant Huscroft points out in Chapter 5, From Natural Justice to Fairness:
Thresholds, Content, and the Role of Judicial Review, the choice of procedures is only one
of five factors that must be taken into account in determining the content of the duty, a determination that is distinct from whether the duty has been met. Once content is determined, decision-makers cannot be wrong in whether they satisfied their duty or not. Is
there a basis for treating the question whether the duty to consult has been met differently
from the question whether the duty of fairness has been met? Is there a basis for treating the
adequacy of the process of consultation (a procedural question) as part of the outcome of
consultation (a substantive one)?
A grounded consideration of how the duty to consult plays out suggests there are differences between the two duties that might be relevant to where the line between process and
substance should be drawn. The brief discussion earlier in this chapter regarding the importance of negotiated consultation protocols and joint decision-making models in implementing the duty to consult suggest the question of how to consult, and consideration of
Aboriginal communities view on the consultation process itself can be important. Where
negotiated consultation processes are present, the duty to consult reaches into the realm of
self-government and facilitating respect for Aboriginal jurisdictions. In such cases, it would
129 Sossin (2010), supra note 78 at 103, where he also reviews the arguments of other commentators. See also
Mullan, supra note 78 at 130; but also note the inconsistency of the Supreme Court in its approach to the
review of decisions where constitutional rights are at stake. See Evan Fox-Decent & Alexander Pless, Chapter12, The Charter and Administrative Law: Cross-Fertilization or Inconstancy?, for discussion.
130 2012 SCC 12.
131 Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212 at para. 34, 37 C.E.L.R. (3d) 89. See
also West Moberly First Nations, supra note 104; Adams Lake, supra note 125; and Ke-Kin-Is-Uqs v. British
Columbia (Minister of Forests), 2008 BCSC 1020, [2009] 1 C.N.L.R. 30 at para. 252.
132 Baker, supra note 75.

IV. Respecting Aboriginal Rights and Jurisdictions

477

be fair to consider the process of consultation to be a distinct outcome of consultation. Another factor in favour of flexible assessment of the consultation process is that the process
and depth of consultation required might change along the way, in light of information exchanged at the initial or later stages. At its best, consultation is a responsive learning process.
In many cases, however, the choice of procedures by the Crown in carrying out the duty to
consult will not reflect such lofty aspirations, and may instead reflect the limitations of the
Crowns resources, the limitations of the Aboriginal communities resources to participate,
and might be complicated by the presence of consultation obligations to different Aborig
inal communities who may not agree on consultation processes or the desired outcomes.133
These considerations point to the need for courts to provide space for the Crown to develop processes to implement the duty to consult in a manner that will be acceptable to
Aboriginal communities as well as within the limitations of Crown resources and the need
to balance polycentric interests. However, these considerations point equally to the need for
courts to scrutinize the nature of the consultation process as part of their assessment of
adequacy. In West Moberly First Nations, Garson J. (in dissent, but not on this point) distinguished Little Salmon/Carmacks and applied the reasonableness standard to the review of
the consultation processes arising in relation to a Treaty 8 right: In my view, [Little Salmon/
Carmackss] adoption of a higher standard [of review] was attributable to the fact that the
case concerned the construction of a modern, comprehensive treaty; a precise document
negotiated by sophisticated and well resourced parties. In that case, the Crown argued that
the treaty was a complete code and there was no obligation to consult beyond the treaty itself.134 Keeping in mind that this argument was rejected by the majority in Little Salmon/
Carmacks, Garson J. further relied on a statement in Rio Tinto Alcan [c]onsultation itself
is not a question of law, but a distinct constitutional process requiring powers to effect compromise and do whatever is necessary to achieve reconciliation of divergent Crown and
Aboriginal interests. Compromise is a difficult, if not impossible, thing to assess on a correctness standard.135 This observation is undoubtedly true; compromise does not produce
the right decision, which is, in theory, the aim of a review for correctness. Nor does the
complex balancing of interests in the reconciliation process reflect the standard account of
judicial expertise. However, it is incongruent that public authorities are required to justify
their procedural choices to a higher standard under the common-law duty of fairness than
under the constitutional duty to consult and accommodate Aboriginal rights. Baker demonstrates that it is possible for courts to defer to decision-makers in their procedural choices
while still requiring them to get the content right. Moreover, Garson J.s reasoning suggests
that more deference is owed to the Crown when the implementation of its constitutional
obligations is dependent on discretion than when it has reached a negotiated agreement
with a First Nation, which results in a clearer statement of the constitutional obligations and
requires legislative action to be implemented. This result does not accord with rationales
behind deferential standards of review described above and elsewhere in this text. Legislative

133 See e.g. Nlakapamux Nation, supra note 98.

134 West Moberly First Nations, supra note 104 at para. 195.
135 Ibid. at para. 197, quoting from Rio Tinto Alcan, supra note 92 at para. 74.

478

Chapter 13 In Search of Aboriginal Administrative Law

action to circumscribe administrative decision making generally signals the need for greater
deference not less. This result also does not accord with the guidance from Haida Nation.
One of the biggest differences between review of the duty to consult and review of the
duty of fairness and the decisions of administrative decision-makers more generally, is the
state of implementation of the duty to consult. In administrative law contexts, legislative
signals and tribunal expertise ground the application of the reasonableness standard. According to Dunsmuir, deference is also owed to administrative decision-makers on questions of mixed fact and law. Such deference is owed in relation to the nature of the initial
finder of facts and his or her expertise and experience in making such a finding. In Haida
Nation, McLachlin C.J.C. anticipated the extension of these applications of deference to the
duty to consult context through the development of legislated consultation processes and
tribunals to administer the duty to consult that did not yet exist.136 If such infrastructure
existed, it would give rise to the usual bases for deference such as expertise.137 Thus, decisions on questions of mixed fact and law, such as the assessment of strength of rights claims
and adverse impacts of Crown actions, would be owed deference by a reviewing court because of legislative choices to delegate such decisions to expert, neutral bodies. Unless such
processes are in place, the Crown, which is one of the parties in the consultation and the
consultation dispute, retains the decision-making authority with respect to such questions
of mixed fact and law as well the resulting choice of procedures.
In general, such legislation still does not exist and governments implementation of the
duty to consult relies heavily on policy.138 Provincial legislation has been passed recognizing
the s.35 duty to consult, but has generally not defined the content of the duty nor established specialized tribunals to resolve disputes regarding consultation processes or outcomes. The recent amendments to the Ontario Mining Act139 provide an example of a step
toward this direction, with provisions (not yet in force) empowering the minister to designate individuals or a body to hear and consider consultation disputes and make recommendations, and giving the minister a broad remedial discretion to address the dispute after
considering those recommendations.140 However, the Courts anticipation of such develop 136 See related discussion in Halalt First Nation v. British Columbia (Environment), 2011 BCSC 945 at paras. 78-84,
appeal in process 2011 BCCA 39264.
137 Haida Nation, supra note 12 at para. 60. Rio Tinto Alcan, supra note 92 provides an example of a standard of
review analysis where a tribunal was the first adjudicator of the adequacy of the duty to consult and the way
in which a statutory regime governing the applicable standards of review may alter the analysis. However, the
B.C. Court of Appeal noted that the Supreme Court erred in their interpretation of the proper standard of
review under the B.C. Administrative Tribunals Act, S.B.C. 2004, c. 45: Lavender Co-Operative Housing Association v. Ford, 2011 BCCA 114 at paras. 37-58. Thanks to M. Cheryl Crane for pointing out this error and
discussion to us.
138 For discussion, see Newman, supra note 86, Chapter 4. For an argument that development of regulatory regime to oversee and fully implement the duty to consult and accommodate is key to ensuring judicial deference to government decision making, and therefore greater certainty in regulation of natural resource
development, see Anthony Knox & Thomas Isaac, Judicial Deference and the Significance of the Supreme
Court of Canadas Decisions in Haida and Taku River (2006) 64 Advocate 487 [Knox & Isaac].
139 R.S.O. 1990, c. M.14.
140 Section 170.1. For discussion of the Ontario Mining Act generally, see Simons & Collins, supra note 15 and
Pardy & Stoehr, supra note 15.

IV. Respecting Aboriginal Rights and Jurisdictions

479

ments in Haida Nation has generally gone unfulfilled. In the meantime, Rio Tinto Alcan
confirms that like other constitutional issues, tribunals must consider the adequacy of consultation processes where the mandate has been conferred by the tribunals constituent
legislation.141
In light of this state of implementation, and in light of the complexities of multi-staged
and negotiated consultation processes, it may be necessary to consider whether the standards of review and bases for deference play out so differently in judicial review of consultation decisions that these administrative law concepts require reconfiguration. However, an
overly deferential treatment of Crown consultation decisions may discourage further
Crown action to implement the duty, and thus hinder the protection of the unproven Aboriginal rights the duty was intended to protect. The absence of legislative action to implement the duty to consult (as anticipated in Haida Nation) thus suggests that a correctness
standard should apply to the review of the adequacy of consultation processes.

C. The Constitutional Nature of the Obligation

The duty to consult and accommodate is owed only to Aboriginal collectivities, as a matter
of constitutional law. The restricted application of this set of procedural obligations is
unique, flowing from the constitutional recognition of Aboriginal and treaty rights. The
constitutional nature of the duty is also unique. Fundamental justice under s. 7 of the Charter gives rise to procedural safeguards that are capable of being articulated as constitutional
rights in relation to specific decisions, such as a right to reasons in relation to the deportation decision at issue in Suresh, discussed elsewhere in this text. A finding of inadequate due
process under s. 7 is also capable of invalidating clearly legislated decision-making processes.142 By contrast, the duty to consult and accommodate is a constitutional obligation
that rests with the Crown as opposed to a constitutional right that belongs to Aboriginal
communities. The Court has described the duty as a valuable adjunct to the unwritten
constitutional principle of the honour of the Crown,143 and an essential corollary to the
honourable process of reconciliation that s. 35 demands [that] preserves the Aboriginal
interest pending claims resolution.144 But consultation is not an Aboriginal right in and of
itself. Instead, the constitutional rights in issue remain s. 35 rights, and the duty to consult
and accommodate is a constitutional duty that arises in relation to those rights, by means of
the honour of the Crown.
If the Aboriginal law context were parallel to s.7 of the Charter, the honour of the Crown
would be parallel to the principle of fundamental justice, protecting important constitutional
rights by constitutionalizing procedural safeguards on the basis of a highly contextualized
analysis of the procedural safeguards required in relation to a particular decision. Presumably,

141 Rio Tinto Alcan, supra note 92 at para. 55. For discussion of the role of tribunals, see Zena Charowsky, The
Aboriginal Law Duty to Consult: An Introduction for Administrative Tribunals (2011) 74 Sask. L. Rev. 213.
142 See e.g. Justice Wilsons decision in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 and
the discussion in Evan Fox-Decent and Alexander Pless's Chapter 12.
143 Little Salmon/Carmacks, supra note 13 at paras. 42 and 44.
144 Haida Nation, supra note 12 at para. 38.

480

Chapter 13 In Search of Aboriginal Administrative Law

the unwritten nature of the honour of the Crown should not render it less potent as a constitutional principle than fundamental justice. However, in Little Salmon/Carmacks, the
Court avoided this parallel structure. As Justice Binnie explained, a constitutional right to
be consulted would mean that more or less every case dealing with consultation in the interpretation and implementation of treaties becomes a constitutional case. The trouble with
this argument is that the content of the duty to consult varies with the circumstances.145
This concern, however, is apparently unproblematic in the s.7 context. For example, while
concerned not to constitutionalize the common law in Suresh, the Court was nevertheless
content to employ the common law framework for dealing with the variability of the content of fundamental justice in relation to s.7 rights.146 Given that the Court has crafted a
similar and familiar framework around the variability of the duty to consult, the Courts
explanation for avoiding a rights-based approach to Aboriginal consultation obligations
leaves something to be desired. A more robust basis than variability of content might be
found in the nature of the rights at stake. Section 7 interests in life, liberty, and security of
person are proven before constitutional relief can be accessed while Aboriginal rights do
not have to be proven before the consultation obligations arise. Nevertheless, the unusual
status of Aboriginal consultation obligations poses a challenge for ensuring that the constitutional nature of the interests at stake are properly respected. Moreover, where consultation
obligations arise in relation to proven or settled Aboriginal rights, the comparison to s.7
procedural rights cannot be so easily dismissed.
These initial differences point to the different sources and objectives of procedural fairness, fundamental justice, and administrative law on the one hand, and of the duty to consult
and Aboriginal law on the other. As discussed above and in other chapters, administrative
law, procedural fairness, and fundamental justice address the legitimacy of state decision
making through rules, process, and principles that maintain accountability and allow for
participation. The duty to consult and accommodate, on the other hand, is about maintaining the honour of the Crown in ongoing processes of fair dealing and reconciliation, obligations that flow from the Crowns assertion of sovereignty over an Aboriginal people and
de facto control of land and resources that were formerly in the control of that people.147
Because state sovereignty gives rise to this need for processes of reconciliation, the duty to
consult is also, unquestionably, about the legitimacy of state decision making and exercises
of power. Where procedural fairness is about developing procedural safeguards within existing state structures, the duty to consult and accommodate is arguably about developing
procedural safeguards that can support changing state structures, given its role in preserving
Aboriginal interests in advance of or parallel to ongoing negotiations aimed at more complete resolutions of Aboriginal claims.148
145 Little Salmon/Carmacks, supra 13 at para. 44.
146 Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 114 [Suresh].
For discussion, see Evan Fox-Decent and Alexander Pless, Chapter 12.
147 Haida Nation, supra note 12 at para. 32.
148 Ibid. at para. 38. See also Brian Slattery, Aboriginal Rights and the Honour of the Crown (2005) 29 Sup. Ct.
L. Rev. (2d) 433. Many commentators are skeptical that the duty to consult and accommodate as currently
constituted is capable of this kind of two-way reconciliation and accommodation, and some note the development bias and assimilative tendency of the duty to consult jurisprudence; see e.g. Christie (2006), supra

IV. Respecting Aboriginal Rights and Jurisdictions

481

A more conservative view of the duty to consult is also possible, emphasizing instead the
role of the duty to consult as a mechanism to integrate Aboriginal rights within existing
administrative structures. In Little Salmon/Carmacks, for example, the Court emphasized
that Aboriginal rights exist within the Canadian legal system and are closely aligned with
the fulfillment of the duty to consult with procedural fairness and administrative law more
generally.149 Under this view, reconciliation is achieved by ensuring that Aboriginal interests
are considered within existing decision-making structures and that attention is paid to working out the balance between Aboriginal concerns, third-party interests, and the broader
public interests within those decision processes.150
Under either view of the dutys contribution, the duty to consult is similar to the duty of
fairness or fundamental justice in that both support the legitimacy of state decision making
and shape the exercise of state power. The difference is that they do so in relation to different
challenges to state legitimacy: the duty of fairness supports the maintenance and evolution
of the administrative state, the duty to consult supports processes that aim at a larger integration and/or restructuring.

D. The Legislative Exemption

In light of the different sources and challenges addressed by the duty of fairness and the duty
to consult, it is not surprising that there are differences in the scope of decisions to which
they apply. One such difference is found in the treatment of policy and legislative decisions.
Under a duty of fairness, legislative decisions are exempt from common-law procedural
obligations. By contrast, and as noted above, the duty to consult applies to strategic and
planning decisions that would likely fall under the legislative exemption in relation to a duty
of fairness (and are otherwise unlikely to attract much procedural content, given the factors
considered under the Baker spectrum analysis). Further, the question of whether the duty
to consult applies to the decisions of legislative bodies has been raised in the jurisprudence
and remains open and undecided. Are there principled reasons to restrict this approach to
the duty to consult or to expand it to administrative law contexts?
As discussed by Grant Huscroft in Chapter 5, the old legislative limitation on the duty to
fairness is muddled by the lack of a clear definition of what constitutes a legislative decision.
In the dated and much criticized lead case, Inuit Tapirisat,151 the Cabinet decision in issue
was held to be legislative because of the nature of the decision-making body (ministers of the
Crown who can be held politically accountable in Parliament) as well as the policy or general
nature of the decision. In Reference re Canada Assistance Plan152 and Wells v. Newfoundland,153
note 114 and Veronica Potes, The Duty to Accommodate Aboriginal Peoples Rights: Substantive Consultation? (2006) 17 J. Envtl. L. & Prac. 27.
149 Little Salmon/Carmacks, supra note 13 at paras. 45-47. Similarly, strands of the s. 35 jurisprudence have
emphasized that Aboriginal rights cannot strain the Canadian legal frameworkMitchell v. M.N.R., 2001
SCC 33, [2001] 1 S.C.R. 911; R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220.
150 See e.g. Knox & Isaac, supra note 138.
151 Att. Gen. of Can. v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735. See Grant Huscroft, Chapter 5 for more discussion.
152 Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at 558.
153 Wells v. Newfoundland, [1999] 3 S.C.R. 199 at paras. 59-61 [Wells].

482

Chapter 13 In Search of Aboriginal Administrative Law

the Court affirmed that in pursuing policy agendas through legislation, Cabinet will not be
subject to a duty of fairness. In Authorson154 the Court confirmed that once a policy proposal reaches Parliament, the three readings in the Senate and House of Commons are all
the process required for legislative decisions, even in light of quasi-constitutional due process obligations under the Canadian Bill of Rights and fiduciary obligations owed by the
Crown to the affected individualsin this case, disabled war veterans.
The legislative exemption from the duty of fairness has two inter-related but separable
components: the nature of the decision, particularly whether it is general or policy in nature;
and the nature of the decision-maker, and particularly whether the open, political processes
of legislative assemblies apply. Both components engage the separation of powers and how
courts respect and, hopefully, reinforce democratic accountability. With respect to the first
component, David Mullan proposes that the duty to consult opens the door for acknowledging the participatory rights for citizen groups seeking input into policy oriented or legislative decisions.155 The basis for this proposition is clear. Under the duty to consult threshold
analysis, government conduct clearly includes general, polycentric decisions by the executive that might be called legislative under a duty of fairness analysis.156 Moreover, the duty
to consult and accommodate encompasses participation in the design of the decision processes: the rule making around large projects with significant impacts on the Aboriginal
interests at stake.157 So the key question in pursuing Mullans proposition is whether there
are principled reasons for the differences in threshold when it comes to policy decisions.
There are principled reasons for the application of the duty to consult to policy decisions.
The requirement that consultation occur early and throughout government decision-making
processes implies that consultation will be more effective if Aboriginal peoples are involved
in the design of those decision-making processes. Aboriginal participation in policy processes that affect Aboriginal rights is clearly required by both the constitutional nature of
their interests (and constitutional priority in relation to proven or recognized rights) and
the imperatives of reconciliation that Aboriginal interests are taken into account in decision
making and preserved pending a more final resolution. (Indeed, involving Aboriginal communities in policy formation links us back to the self-government processes that underpin
the development of a distinctive Aboriginal administrative law.) The question is whether the
purposes of the duty to consult that require its application to policy decisions also justify
maintaining a different scope of participatory rights in relation to policy-making for other
citizens or citizen groups.
It might be argued that the constitutional nature of the interests is sufficient to differentiate the scope of Aboriginal participatory rights from the scope of the participatory rights of
other citizens in relation to policy decisions.158 Alternatively, it might be argued, as Mullan
154 Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40 at para. 37 [Authorson].
155 Mullan, supra note 78 at 128.
156 Rio Tinto Alcan, supra note 92 at para. 44; Tsuu Tina Nation, supra note 102.
157 Dene Tha, supra note 101.
158 In Adams Lake, supra note 125 at para. 128, Justice Bruce relies on the constitutional character of the duty to
consult to find that there is no justification for insulating [the impugned order in council] from the duty
to consult simply because it has a legislative character.

IV. Respecting Aboriginal Rights and Jurisdictions

483

does, that broad participatory rights are, practically speaking, essential to the aims of the
duty to consult: Reconciliation will not come from keeping the competing interests apart,
but rather from bringing them together in processes that will provide effective engagement
on the part of all substantially affected interests.159 These arguments engage the competing
approaches to reconciliation, canvassed above. It is not necessary to choose between the
competing views of reconciliation to address whether the constitutional purposes and interests behind the duty to consult justify restricting the inclusion of policy decisions to the
duty to consult. The constitutional priority of Aboriginal interests is a limit on government
conduct and not on the procedural rights of other citizens. The expansion of the duty of
fairness to encompass policy decisions made by the executive has been argued to be justifiable on its own merits, whether because the theoretical line between administrative and
policy decisions is unsustainable or because the formal theory of the separation of powers
upon which this line was drawn has been discredited.160 The broader scope of the duty to
consult does not change or restrict this argument. If anything, it opens the door to procedural fairness in decisions that are legislative in nature by demonstrating that procedural
rights with respect to policy decisions do not threaten the separation of powers and further
refine what separates legislative and executive decision making, as we will see below.
The second component of the legislative exemptionthe nature of the decision-maker
and the application of procedural rights to open, political processes of legislative assembliesis more complex and engages the constitutional basis of the duty to consult more
directly. Whether under a duty of fairness or a duty to consult, the legislative limitation on
procedural rights is presumably justified with respect to the decisions taken by and within
legislative assemblies.161 Procedural rights give rise to obligations that are owed by and in
relation to the acts of the executive branch of government. This apparently clear line is, however, complicated by the role of Cabinet as the primary proposer and drafter of legislation
as well as its primary role, at least in majority governments, in advancing legislation within
legislative assemblies. And as Major J. commented in Wells v. Newfoundland, The separation
of powers is not a rigid and absolute structure. The Court should not be blind to the reality
of Canadian governance that, except in certain rare cases, the executive frequently and de
facto controls the legislature.162 The question, then, becomes at what point and how far into
the process of proposing and advancing legislation should procedural obligations (whether
under a duty to consult or a duty of fairness) apply? And what remedies would procedural
safeguards provide with respect to procedurally deficient legislative acts of the executive?
The duty to consult cases has begun to address these questions. While in Rio Tinto Alcan,
the Supreme Court left the question of whether government conduct includes legislative
action for another day,163 the Alberta Court of Appeal has come up against this issue in a
159 Mullan, supra note 78 at 129.
160 See the discussion in Grant Huscroft, Chapter 5, and Genevieve Cartier, Procedural Fairness in Legislative
Functions: The End of Judicial Abstinence? (2003) 53 U.T.L.J. 217 [Cartier].
161 Cartier, ibid.
162 Wells, supra note 153 at para. 54. In Wells, this reality meant that the Crown was liable in contract and not
under a duty of fairness.
163 Supra note 92 at para. 44. Rio Tinto Alcan was decided several months after Tsuu Tina Nation.

484

Chapter 13 In Search of Aboriginal Administrative Law

couple of cases. In Lefthand, Justice Slatter was content to rely on Authorson to pronounce
that [t]here can be no duty to consult prior to the passage of legislation including the
passage of regulations and orders in council.164 However, in Tsuu Tina Nation the Alberta
Court of Appeal accepted that the Crowns consultation obligations applied to the development of a water management plan, a plan that was adopted by an order in council. The more
difficult issue defined by the Court in this case was whether quashing the order in council
would be an appropriate remedy. The difficulty this issue raises is whether the constitutional
procedural obligation of a duty to consult will give rise to a substantive limit on the legislative authority of Cabinet. The First Nations in Tsuu Tina Nation withdrew their request for
the order in council preferring to seek a declarative remedy, thereby allowing the court to
leave the interesting question as to whether a free-standing duty to consult is a constitutional imperative under section 35 for another day.165
As noted earlier in this section, the parallels between fundamental justice under s. 7 and
under the duty to consult would appear to provide a basis for parallel substantive relief
under the duty to consult. If this parallel is accepted, the answer to Alberta Court of Appeals interesting question should be yes.166 However, the Supreme Courts reluctance to
attribute the same constitutional status to the duty to consult as given to procedural safeguards under s. 7 suggests that the answer might be no. In any event, the possibility of a
substantive constitutional remedy based on procedural obligations is premised specifically
on the constitutional nature of the duty to consult and thus not relevant in the context of
common-law procedural fairness. Apart from this specific remedy, however, the application
of the duty to consult to traditionally legislative decisions such as orders in council holds
significant potential to transfer into the duty of fairness.
Tsuu Tina Nation illustrates that legislative decisions made by the executive council fall
within the scope of the duty to consult. The Cabinet decision in issue in Tsuu Tina Nation
was made pursuant to a delegated legislative authority, and the Court of Appeal confirmed
that the mode by which the government policy was adoptedthe order in councildid not
immunize the executive actors from the duty to consult. Echoing the Supreme Courts comments in Wells, the Court of Appeal commented that even if the Legislature itself does not
have a duty to consult prior to passing legislation, the duty may still fall upon those assigned
the task of developing the policy behind the legislation, or upon those who are charged with
164 R. v. Lefthand, 2007 ABCA 206 at para. 38, 77 Alta. L.R. (4th) 203, leave to appeal to the Supreme Court of
Canada refused, 2008 CanLII 6384.
165 Tsuu Tina Nation, supra note 102 at para. 51. The courts in British Columbia have also encountered this issue
and have also avoided quashing a legislative act by Cabinet as a result of inadequate consultation. In Adams
Lake, supra note 125, the B.C. Supreme Court considered the Adams Lake Indian Bands application to quash
an order in council establishing the former recreation area of Sun Peaks as an incorporated municipality in
light of inadequate consultation and accommodation prior to the passage of the order in council. Justice
Bruce discussed this remedy as possible, but held that it was an inappropriate and unnecessary remedy in the
circumstances.
166 This answer might be encouraged by considering the comments of the Supreme Court in Authorson, supra
note 154 at para. 50, where the Court reviewed Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and stated,
Although this Court has not yet recognized substantive rights stemming from due process, Re B.C. Motor
Vehicle Act indicates its willingness to recognize that, in the proper circumstances, guarantees of process or
justice may confer substantive protections.

IV. Respecting Aboriginal Rights and Jurisdictions

485

making recommendations concerning future policies and actions.167 The manner and extent to which the duty to consult applies to the development of legislative proposals to be
tabled in a legislative assembly, remains undeveloped. But as noted above in relation to the
first component of the legislative exemption, there is no principled reason to restrict any
such developments to the Aboriginal administrative law context. Instead, Aboriginal administrative law is challenging this traditional limitation on procedural rights by forcing a
consideration of the role of the executive in relation to the development of policy, including
primary and secondary legislation. Outside of judicial review, it is worth noting that government actors have been working to align the legislative process and their consultative
obligations in a manner that extends consultation quite a long way into the legislative drafting process. For example, the Kunstaa Guu-Kunstaayah Reconciliation Protocol between
British Columbia and the Haida Nation, discussed above, included an explicit mutual commitment to review each others draft legislation to implement the protocol.168 Such developments as well as future judicial consideration of the issue will undoubtedly be relevant in
considering the future of the legislative exception to the duty of fairness.

E. Other Possibilities and Points of Cross-Fertilization

In this brief review of the many parallels and the points of difference between the duty to
consult and accommodate and the duty of fairness, we do not have the space to address
numerous other issues that deserve further attention. For example, the unique allowance for
the Crown to delegate procedural aspects of the duty to consult to third parties may hold
useful further reflections on the procedural/substantive divide in administrative law. Concerns about the role of tribunals in reviewing the adequacy of Crown consultation efforts as
part of their decision making are deeply related to the role of tribunals in considering constitutional questions and the tensions around this role in other parts of administrative law.
A comparative consideration of remedies under the duty to consult relative to other areas of
administrative law might produce interesting reflections. The list goes on.
The comparisons pursued have served to highlight that although administrative law and
Aboriginal law are about different things, similar problems arise in eachnamely, ensuring
adequate transparency and participation in decision making for those affected by particular
decisions. The most substantial differences exist where the constitutional nature of the duty,
and its particular role in preserving Aboriginal interests pending claims resolution and
promoting reconciliation, mandates a broader application of the duty to consult and more
substantive remedies. Nevertheless, the constitutional distinctiveness of the duty to consult
has not stopped it from moving into administrative law in a variety of contexts. From the
emphasis on consultation in determinations of whether collective bargaining rights have
been violated in Health Services and Support,169 to the reliance on the duty to consult cases
167 Tsuu Tina Nation, supra note 102 at para. 55. See also Canadian Society of Immigration Consultants v. Canada
(Citizenship and Immigration), 2011 FC 1435, discussing the relationship in administrative law between executive and legislative action.
168 Article 6.6, supra note 32.
169 Health Services and SupportFacilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007]
2 S.C.R. 391.