Electronic Thesis and Dissertation Repository

Thesis Format

Monograph

Degree

Doctor of Philosophy

Program

Law

Supervisor

Coyle, Michael J.

Abstract

This examination of Canada’s duty to consult doctrine advances two arguments. First, the doctrine may not be serving the interests of some consultation participants effectively. Second, the existing literature does not address the challenges posed by multi-jurisdictional projects or the Crown’s decreased involvement in consultations adequately. Consequently, our understanding of the doctrine is incomplete and our ability to improve its efficacy may be restricted.

This dissertation explores the doctrine’s principles, strengths, and weaknesses to identify opportunities for improvement. It re-imagines the doctrine, identifying specific ways to improve its efficacy. At bottom, this dissertation considers three questions. First, to what extent does the doctrine accommodate contemporary needs? Second, could revising the doctrine reduce the number of consultations being referred to the judiciary? Third, could a revised doctrine contribute to Crown-Indigenous reconciliation?

There is a direct connection between Canada’s consultation doctrine and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Each seeks to advance and protect the rights of Indigenous peoples. Although their detailed comparison exceeds this dissertation's scope, notable conflicts between them and possibly Canada’s constitutional framework merit discussion. Accordingly, several issues are identified in this dissertation’s body and discussed more expansively in its appendix.

Summary for Lay Audience

In November 2004, the Supreme Court of Canada created a legal doctrine commonly known as the Duty to Consult Aboriginal Peoples, in its landmark Haida Nation v British Columbia (Minister of Forests) decision. The doctrine addressed concerns that activities including building roadways, harvesting timber, or extracting minerals on contested lands were occurring without consultation or the consent of Indigenous peoples. It requires proactive consultation with Indigenous peoples whose interests may be affected by Crown policies or proposed projects. Notably, it does not require agreement between the parties. Nor does it give Indigenous peoples a general veto or prescribe consultation protocols.

Accounts of the doctrine’s history, principles, and operational characteristics are abundant in scholarship, jurisprudence, political discourse, and the media. Those conventional narratives help us understand the doctrine as a social and legal instrument. They are often less helpful in understanding current project needs or Indigenous perspectives, particularly those concerning concepts such as honour, reconciliation, and sovereignty.

This dissertation draws from the literature and judicial record to develop its conclusions. It asserts that the nature of projects has evolved since 2004 without the doctrine or literature keeping pace in some respects. For example, although the Crown is ultimately responsible for consultation outcomes, most negotiations are now conducted by industry representatives with minimal Crown involvement. Whereas early consultations typically involved a single First Nation and a specific issue, projects involving multiple First Nations, provinces, agencies, and multiple issues are

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increasingly common. Today, many agreements reached through industry-led negotiations are private contracts called Impact Benefit Agreements (IBA) that are not ordinarily available for public review. These changes, which are not well represented in the literature, introduce potential risks to the equity, fairness, and transparency of agreements. They also present opportunities to modernize the doctrine. Accordingly, this dissertation investigates how well the doctrine’s underlying principles and traditional negotiating methods accommodate current projects. It suggests there might be a better way.

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