139 rso 1990 c m14 140 section 1701 for discussion of

This preview shows page 8 - 10 out of 15 pages.

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 con- sultation processes where the mandate has been conferred by the tribunal’s 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 stan- dards of review and bases for deference play out so differently in judicial review of consulta- tion 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 Ab- original rights the duty was intended to protect. The absence of legislative action to imple- ment 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 Char- ter 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 deporta- tion 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 pro- cesses. 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.

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture