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The duty to consult in the administrative law context: When it arises, and where it is enforced

The jurisprudential life of the Crown’s duty to consult with aboriginal people in the interim of the final determination of aboriginal claims is almost a decade long. Since the Supreme Court of Canada’s confirmation of the duty in 2004, First Nations have spent a lot of litigation time and effort trying to determine just how, when, and where they can enforce this duty. The disputes have entwined questions of what Crown conduct triggers the duty with questions of what Crown conduct is reviewable by the Courts and how.

The role of tribunals in enforcing the Crown’s duty to consult arose in 2008 in the companion cases of Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68 and Carrier Sekani Tribal Council v. British Columbia (Utilties Commission), 2009 BCCA 67The B.C. Court of Appeal determined in both cases that, in making the statutory determinations at issue under the British Columbia Utilities Act, the British Columbia Utilities Commission had the jurisdiction and the obligation to determine whether the Crown had met any duty to consult with respect to the Crown conduct at issue. These cases enmeshed the questions of where the duty arises, and what bodies are properly engaged in the duty’s enforcement.

No appeal was sought from Kwikwetlem, but the respondent Rio Tinto Alcansought leave to appeal to the Supreme Court of Canada from the Carrier Sekani decision, and when leave was granted, BC Hydro joined as an appellant. The Court heard and released its decision in Rio Tinto Alcan v. Carrier Sekani Tribal Council in the fall of 2010. This decision, as well as the Beckman v. Little Salmon/Carmacks First Nation, 201 SCC 53, are reviewed in this paper, as are points from other decisions that deal with the intersection of aboriginal and administrative law.

The salient issue this paper looks at is when the duty arises, and how it is enforced in the administrative state.

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