While the Supreme Court has stated that the Crown can delegate no more than the procedural aspects of consultation, the Court has not specified the precise boundary between permissible and impermissible delegation.
The question is important to First Nations across Canada frustrated with companies purporting to 'consult' while being either incapable or unwilling to fulfill the Crown's constitutional obligations.
For example, Ontario relies heavily on mining companies to discharge the Crown's duty to consult and accommodate obligations. I've commented earlier on this aspect of Ontario's new Mining Act:
Our client, Wabauskang First Nation, has raised the issue as part of their challenge to Ontario's authorization of a proposed gold mine in Treaty 3. The written arguments have now been filed:
The hearing is scheduled for Toronto during the week of April 14th.
The case has the potential to clarify the law and create an important precedent for First Nations, industry and governments across the country.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.
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