Judicial Influence on the Duty to Consult and Accommodate

The duty to consult and accommodate has increasingly become front and centre in a wide range of resource and development projects and the related litigation. The Supreme Court of Canada has stated that it seeks to foster negotiation and limit litigation through its approach to the duty. This article examines, from a theoretical perspective, whether the Court is furthering this objective. It builds on a simple model of How the legislature and courts interact in the administrative law context and discusses how the relationship changes with the addition of Indigenous peoples seeking enforcing the government’s constitutional duty to consult and accommodate. It examines both decisions made by Cabinet and by an “independent” body such as the Canada Energy Regulator (CER). The model points to the importance of both the approach taken by the reviewing court and the relative political positions of relevant actors. The interpretation of the standard of review by different types of judges will impact the incentives to litigate and the probability of success from litigation. In addition, the incentive to litigate shifts as policy positions shift for Cabinet, for boards or for judges, but not in a straightforward fashion. The model informs not only the duty to consult, but judicial review in the standard administrative law context and involving other constitutional issues.