The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult

Abstract

The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis.
 Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.

How Should Courts Respond to Political Questions? Exploring the Dialogical Turn in the Supreme Court of Canada’s Federalism and Indigenous Case Law

“…In these situations, if courts redirect issues back to political negotiations without strong guidance, both the court and the consultation process may be seen as unfair and disingenuous. This is arguably emerging in Canada: skepticism among Indigenous groups that consultations will lead to meaningful political negotiations has the potential to delegitimize the entire duty-to-consult process and the judiciary as an enforcer of this right (Hamilton and Nichols 2019, 743).…”

The Duty to Consult and Colonial Capitalism: Indigenous Rights and Extractive Industries in the Inuit Homeland in Canada

“…However, there is now mounting criticism of the way the duty has been characterized in Canadian law. Some scholars argue that, because the doctrine does not allow Indigenous communities to provide or withhold their consent to Crown actions, it allows the Crown to act unilaterally, reinforces Crown sovereignty, and therefore undermines the ability of many Indigenous Peoples to establish true nation-to-nation relationships with Canada (Scott & Boiselle, 2019;Doyle, 2019;Hamilton & Nichols, 2019;Ritchie, 2013). Others note that, because the focus is on procedural fairness rather than substantive outcomes, there is an insuffi cient attention to accommodating Indigenous Peoples' rights and interests in duty to consult litigation (McIvor, 2018).…”

Throughput Legitimacy and the Duty to Consult: The Limits of the Law to Produce Quality Interactions in British Columbia's EA Process

“…Indigenous peoples experience a deep distrust of state institutions and processes as a result of Canada's state-sanctioned assimilatory efforts. Moreover, within the duty to consult case law, the Court does not radically challenge Crown sovereignty (for example, Christie 2006; Hamilton and Nichols, 2019), and the SCC is generally reticent about recognizing Indigenous nations’ legal authority (for example, Alfred, 2005; Asch, 2004; Borrows, 2010; Coulthard, 2014; MacCrossan and Ladner, 2016). The refusal of state institutions to acknowledge Indigenous jurisdictional authority is a significant obstacle to the advancement of reconciliation from the perspective of Indigenous peoples.…”