The Duty to Consult in Canada Post-Haida Nation

• Author: Nigel Bankes
• Position: Professor and Chair, Natural Resources Law
• Pages: 346-369

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Citation: Nigel Bankes. “The Duty to Consult in Canada Post-Haida Nation” Arctic Review on Law and Politics, Vol. 11,

2020, pp. 256–279. http://dx.doi.org/10.23865/arctic.v11.2568

Arctic Review on Law and Politics

Vol. 11, 2020, pp. 256–279

256

*Correspondence to: Nigel Bankes, email: ndbankes@ucalgary.ca

Peer-reviewed article

The Duty to Consult in Canada

Post-Haida Nation

Nigel Bankes*

Faculty of Law, University of Calgary, Canada

Abstract

This article is intended as a companion piece to Øyvind Ravna’s contribution to this anniversary

volume. It maps the development of the duty to consult in Canadian law since the seminal decision

of the Supreme Court of Canada in Haida Nation v British Columbia in 2004. The article begins

by briey examining the rst references to the duty to consult in 1990 before turning in Part 2 to

the transformation of the duty in Haida Nation and a doctrinal analysis of the various elements of

the duty. Part 3 examines the international standard of free, prior and informed consent (FPIC) as

developed in the UN Declaration on the Rights of Indigenous Peoples as well as the implications

of legislation that aims to give effect to the Declaration in federal or provincial law. The conclusion

to the paper offers some comparative comments on Norway and Canada regarding the develop-

ment of the duty to consult. These comments emphasise that whereas consultation and FPIC

obligations in Norway are rmly rooted in international law, and, in particular, in the International

Labour Organization’s Convention on Indigenous and Tribal Peoples (ILO C-169), this is not the

case in Canada. In Canada, the duty to consult and accommodate nds its origins in domestic

law and the entrenchment of aboriginal rights in the Constitution in 1982. However, more recent

discussions over the implementation of the UN Declaration in federal and provincial law have

inevitably broadened the discourse to include international law and the FPIC standard.

Keywords: Canada; Indigenous peoples; duty to consult; free, prior and informed consent

Responsible Editor: Øyvind Ravna, Faculty of Law, UiT The Arctic University of

Norway

Received: August 2020; Accepted: October 2020; Published: December 2020

This article is intended as a companion piece to Øyvind Ravna’s contribution to this

anniversary volume.1 It maps the development of the duty to consult in Canadian

law since the seminal decision of the Supreme Court of Canada in Haida Nation v

The Duty to Consult in Canada Post-Haida Nation

257

British Columbia in 2004.2 As such, it reaches back beyond the inaugural volume of

this Review.

When the Supreme Court of Canada rendered its decision in Haida Nation there

was little if any discussion of free, prior and informed consent (FPIC) as an alter-

native or parallel formulation to the duty to consult. Indeed, the FPIC formulation

does not make an appearance in Canadian case law until 2014.3 Nevertheless, with

the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP

or UN Declaration) in 2007,4 there has been increased reference to this standard in

the discourse surrounding the rights of Indigenous peoples, not only internationally

but also in Canada. And while Canada was slow to endorse the UN Declaration,

more recent efforts at both the federal and provincial levels to adopt legislation to

make the Declaration applicable in Canadian law has brought to the fore the rela-

tionship between the international standard of FPIC and the domestic law standard

pertaining to the duty to consult and accommodate.

This article begins by briey examining the rst references to the duty to consult

in 1990 before turning in Part 2 to the transformation of the duty in Haida Nation

and a doctrinal analysis of the various elements of the duty. Part 2 concludes with a

survey of some critiques of the duty to consult (and accommodate).5 Part 3 exam-

ines the international standard of free, prior and informed consent as developed

in the UN Declaration as well as the implications of legislation that gives effect

to the Declaration in federal or provincial law. The conclusion to the paper offers

some comparative comments on Norway and Canada regarding the development

of the duty to consult. These comments emphasise that whereas consultation and

FPIC obligations in Norway are rmly rooted in international law, and, in particu-

lar, the International Labour Organization’s Convention on Indigenous and Tribal

Peoples (ILO C-169), this is not the case in Canada. In Canada, the duty to con-

sult and accommodate nds its origins in domestic law and the entrenchment of

aboriginal rights in the Constitution in 1982. However, more recent discussions over

implementation of the UN Declaration in federal and provincial law have inevitably

broadened the discourse to include international law and the FPIC standard.

1 First references to the duty to consult

The Supreme Court of Canada rst referenced the duty to consult in Sparrow in the

context of assessing the extent to which the government might be able to justify the

infringement of a constitutionally protected aboriginal right to sh.6 As part of that

analysis (known as the justiable infringement test), the Court, almost in passing,

indicated that it would consider as a relevant factor whether the Crown has con-

sulted the aboriginal group in question with respect to the proposed conservation

measures.7 The duty to consult still plays a role in rights infringement cases8 but its

principal role now in Canadian law is as a means to protect aboriginal and treaty

rights (especially those rights claimed rather than proven) from infringement where a