In this article, we: (1) advance a theory for how courts should respond to highly political disputes about jurisdictional authority, and (2) assess whether courts can achieve this ideal. Our theory draws from normative realism to argue that courts should push conflict back into the political realm whenever possible—facilitating free and fair dialogue by outlining rules and principles to guide negotiations, while also rejecting zero-sum outcomes when enforcing jurisdictional powers and related rights. We favor this approach because it can generate legitimacy for the legal and political systems by recognizing the judiciary’s limited democratic standing in structural disputes. To ground this argument in actual practice, we assess how the Supreme Court of Canada has managed two streams of highly political jurisprudence related to jurisdictional authority—federalism and Aboriginal rights cases. We show that the Court has increasingly relied on this approach of facilitating dialogue in both areas. While we argue that this approach is particularly well suited to federalism cases, our analysis uncovers negative outcomes in Indigenous case law. The Court’s approach often fails to strongly enforce the constitutional rights of Indigenous peoples, demonstrating that its facilitator role does not adequality account for the power imbalances between the state and Indigenous peoples.

The duty to consult is an Aboriginal right protected under s. 35 in the Constitution Act, 1982. This article analyzes 11 Supreme Court of Canada (SCC) decisions concerning the duty to consult and distinguishes between the SCC’s promotion of the purpose and practice of reconciliation. This distinction more accurately depicts how the SCC understands why and how the Crown should advance reconciliation in the context of the duty to consult. This article finds that the SCC has consistently stated that reconciliation is required due to the existence of Aboriginal rights and the assertion of Crown sovereignty, creating an obligation to reconcile Indigenous and non-Indigenous societal interests. However, the practices outlined by the SCC on how the Crown can fulfill the duty suggest that the Crown is given a wide latitude to pursue its legislative objectives, which may result in the unjust infringement of Aboriginal rights over time. For instance, the Crown has discretion over the communication of decision-making to affected Indigenous parties and the balancing of Indigenous and non-Indigenous societal interests. Consequently, the practices of the duty to consult call into question the extent to which the duty can uphold the purpose of reconciliation between the Crown and Indigenous peoples.

The duty to consult mandates that the Crown must consult affected Indigenous parties when Crown action may negatively impact Aboriginal rights or title claims. The Supreme Court of Canada (SCC) has emphasized that the duty should be characterized by honourable dealings and good faith negotiations. This article argues that the concept of throughput legitimacy can help evaluate the Crown's conduct in consultation. By analyzing 131 British Columbia Environmental Assessments (BC EAs), this article finds that the Crown struggles to uphold throughput legitimacy from the perspective of Indigenous peoples, particularly in the areas of transparency, accountability and effectiveness.

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