The Duty to Consult & the Elusive Crown: An Inquiry into Confusion, Conflation and the Diminished Presence of the Crown in Appellate Court Jurisprudence after Rio Tinto

Abstract

The project of reconciliation, heralded by the inclusion of section 35 in the Constitution Act, 1982, has made important strides as Canadian courts have expanded and elaborated the rights of Aboriginal peoples and the duties of the Crown. One of the key contributions to the s. 35 jurisprudence came with the Supreme Court of Canada’s development of the duty to consult in Haida in 2004. Haida was subsequently reaffirmed and expanded in the 2010 decision, Rio Tinto. However, since 2010, as First Nations groups continue to assert their rights, both superior and appellate courts have faced novel and uncontemplated invocations of the duty. The outcome of numerous appellate level decisions has seen both confusion and conflation of the Supreme Court’s jurisprudence in Haida and Rio Tinto. This has resulted in competing, and contradictory developments of the case law that jointly and paradoxically have the effect of diminishing the Crown’s duty to engage in consultation altogether. This paper principally examines two appellate level decisions, Neskonlith at the BC Court of Appeal, and Clyde River at the Federal Court of Appeal, in order to expose emerging problems in the duty to consult jurisprudence and to highlight the problem of the Crown’s withdrawal from what is, at its core, a quintessentially political process.