PDF version: Bill 2 the Responsible Energy Development Act and the Duty to Consult
Proposals commented on: Bill 2, the Responsible Energy Development Act, Alberta and the First Nations Consultation Policy, Discussion Paper, (Fall 2012).
There has been a lively debate in the courts, tribunal decisions and the literature over the last few years as to the role of administrative tribunals in discharging or examining the Crown’s duty to consult aboriginal peoples when contemplating making decisions and developing policies which may adversely affect aboriginal or treaty rights. There are two guiding rules. First, a tribunal that has the authority to decide questions of law is presumed to have the jurisdiction to decide questions of constitutional law including the question of whether or not the Crown has satisfied its constitutional duty to consult and accommodate – provided that the constitutional question is rationally connected to a power or jurisdiction that the tribunal is exercising. The legislature may rebut that presumption by removing all or part of that jurisdiction from a tribunal. Second, a tribunal does not have the authority to discharge the Crown’s duty to consult and accommodate unless that authority is expressly delegated to the tribunal. The principal authority for all of this is Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 which I blogged at here.