The Duty to Consult and Reconciliation: The Supreme Court’s Idea of the Purpose and Practice of Consulting Indigenous Peoples

Abstract

The duty to consult is an Aboriginal right protected under s. 35 in the Constitution Act, 1982. This article analyzes 11 Supreme Court of Canada (SCC) decisions concerning the duty to consult and distinguishes between the SCC’s promotion of the purpose and practice of reconciliation. This distinction more accurately depicts how the SCC understands why and how the Crown should advance reconciliation in the context of the duty to consult. This article finds that the SCC has consistently stated that reconciliation is required due to the existence of Aboriginal rights and the assertion of Crown sovereignty, creating an obligation to reconcile Indigenous and non-Indigenous societal interests. However, the practices outlined by the SCC on how the Crown can fulfill the duty suggest that the Crown is given a wide latitude to pursue its legislative objectives, which may result in the unjust infringement of Aboriginal rights over time. For instance, the Crown has discretion over the communication of decision-making to affected Indigenous parties and the balancing of Indigenous and non-Indigenous societal interests. Consequently, the practices of the duty to consult call into question the extent to which the duty can uphold the purpose of reconciliation between the Crown and Indigenous peoples.