Delegated Legislation and the Duty to Consult on and Accommodate Aboriginal and Treaty Rights

11 Pages Posted: 3 Oct 2019

See all articles by John Mark Keyes

John Mark Keyes

University of Ottawa - Faculty of Law

Date Written: September 24, 2019

Abstract

This article examines the duty to consult on and accommodate Aboriginal and Treaty rights in relation to law-making. In Mikisew Cree First Nation v Canada the Supreme Court of Canada recently addressed the application of this duty to parliamentary bodies and their law-making functions with a majority of the Court concluding it did not apply. The Court did not address law-making by non-parliamentary bodies that make delegated legislation. This article examines this question and concludes there is good reason to think the duty applies to law-making by the executive branch and other bodies that perform executive law-making functions. The article also considers the effect (if any) that administrative law consultation requirements for delegated legislation might have on the duty to consult and accommodate on Indigenous matters. Finally, it considers whether the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) will have any effect on these issues, particularly given a proposal to implement it through Bill C-297.

Keywords: legislation, indigenous rights

Suggested Citation

Keyes, John Mark, Delegated Legislation and the Duty to Consult on and Accommodate Aboriginal and Treaty Rights (September 24, 2019). Available at SSRN: https://ssrn.com/abstract=3459225 or http://dx.doi.org/10.2139/ssrn.3459225

John Mark Keyes (Contact Author)

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

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