Supreme Court of Canada clarifies when regulatory bodies may be relied on to fulfill the Crown’s duty to consult Aboriginal peoples – Dentons.com

August 15, 2017

As the Supreme Court of Canada (SCC) explained in Haida1 and Carrier Sekani2, it is open to legislatures to empower regulatory bodies to play a role in fulfilling the Crown’s duty to consult Aboriginal peoples. Carrier Sekani further clarified that, whether the Crown may rely, in whole or in part, on a regulator to fulfill the duty to consult depends on whether the regulator’s statutory duties and powers enable it to do what the duty requires in the particular circumstances.3

After Haida and Carrier Sekani, it has been less clear – to the bar, resource project proponents, Indigenous groups and governments alike – how that controlling law is to be applied by tribunals and by courts of justice.

The SCC issued two landmark Crown consultation decisions on July 26, 2017, in Clyde River (Hamlet)4 and Chippewas of the Thames First Nation.5 In these companion appeals, the SCC affirmed the governing law from Haida and Carrier Sekani, applied it to two different legislative and factual contexts, and gave stakeholders meaningful guidance on when and how the Crown may rely on regulatory processes to fulfill the duty to consult.