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

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