The Seven Year Itch: The SCC Returns to Address an Unresolved Question regarding the Crown’s Duty to Consult Aboriginal People and the Legislative Process

On May 18, 2017, the Supreme Court of Canada agreed to hear an appeal in an important case that could further define the nature and extent of the Crown's duty to consult Aboriginal people, including the previously unresolved question as to whether the Crown's duty to consult Aboriginal people can be triggered by legislative action.

Background - When Does the Crown Duty to Consult Arise?

In 2010, the Supreme Court of Canada, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, addressed the question "When Does the Duty to Consult Arise?"  The Court found that the test for triggering the Crown's duty to consul can be broken down into three elements:

(1) the Crown's knowledge, actual or constructive, of a potential Aboriginal claim or right;

(2) contemplated Crown conduct; and

(3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. (para. 31)

In discussing the second element (contemplated Crown conduct), the Court went out of its way to clarify that it was not addressing the question of whether consultation obligations could arise from the government's action in preparing or passing legislation.

"We leave for another day the question of whether government conduct includes legislative action."  (para. 44)

That day may arrive soon.

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