Crown’s duty to negotiate with Indigenous Peoples: Making reconciliation make sense and move forward – Lexpert
Jan 27, 2025
Judicial clarity on duty to negotiate is key to reconciliation and Canada’s constitutional integrity
As courts continue to embrace and nudge the national project of reconciliation along, the Crown’s duty to negotiate with Indigenous Peoples is becoming increasingly important on the ground. From a legal and constitutional perspective, reconciliation is about determining, recognizing and respecting the rights, interests and claims held by First Nation, Inuit and Métis peoples that are protected by s. 35 of the Constitution Act, 1982 (“s. 35”).
Yet, despite repeatedly recognizing that the Crown’s duty to negotiate exists, the Supreme Court of Canada (“SCC”) has not fully considered or applied it in a specific fact situation or set out the legal framework for its practical use. While the well-known duty to consult as well as other Crown duties owing to Indigenous Peoples have been considered by the SCC numerous times over the last 40 years, the duty to negotiate remains an unknown on multiple fronts.
