The Tin Ear of the Court: Ktunaxa Nation and the Foundations of the Duty to Consult

32 Pages Posted: 24 Apr 2019

See all articles by Robert Hamilton

Robert Hamilton

University of Calgary - Faculty of Law

Joshua Nichols

affiliation not provided to SSRN

Date Written: March 26, 2019

Abstract

The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis.

Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to-nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.

Keywords: Aboriginal Rights, Duty to Consult, Colonialism

JEL Classification: K19

Suggested Citation

Hamilton, Robert and Nichols, Joshua, The Tin Ear of the Court: Ktunaxa Nation and the Foundations of the Duty to Consult (March 26, 2019). Alberta Law Review, Vol. 56, No. 3, 2019, Available at SSRN: https://ssrn.com/abstract=3360185

Robert Hamilton (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

Joshua Nichols

affiliation not provided to SSRN

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