Introduction to The Canadian Governmental Duty to Consult Indigenous Peoples

The Indigenous peoples of Canada have a vibrant ancient history in modern-day Canada. When the lands became colonized and named British North America and later renamed Canada, Indigenous people still occupied their ancestors’ lands. Unfortunately, the Canadian government has a history of discrimination and disregard for Indigenous people and their rights, which modern Canadian courts and governments are attempting to rectify under the name of reconciliation. 

One part of reconciliation is negotiating and settling government lands that Indigenous peoples have disputed to belong to them. Before settling these Indigenous territorial claims, many of these lands have been permanently harmed by government actions in the pursuit of economic activity, as seen on Haida Gwaii. There has also been a history of governmental actions and decisions that have been held to violate Indigenous rights, as stated in R v. Sparrow 1990. With these factors in mind, the governmental duty for the consultation of Indigenous peoples was verified and codified in the keystone case of Haida Nation v. British Columbia (Minister of Forests) 2004. 

Haida Nation involved the Province of British Columbia issuing licencing to forestry companies for logging on the islands of Haida Gwaii, formally known as Queen Charlotte Islands. The government continued to issue licences to the land they have legal title to without the consent of the Haida peoples, who have claimed title to all the lands of Haida Gwaii. At the time of the lawsuit and as continued at the time of writing this article, the Haida people’s title to the land is still in the process of establishing legality. 

The main argument from Haida Nation for establishing a governmental duty to consult stems from the notion that that if the title for their Indigenous traditional territories were eventually transferred to local Indigenous groups, then these lands may be altered and damaged beyond repair. The irreversible and detrimental damage to the lands would go against the fundamental principle of reconciliation. To avoid this issue, Haida Nation established a governmental duty to consult groups of indigenous peoples whom the crown knows to have asserted claims to the lands being used. 

Before Haida Nation, the courts in R v. Sparrow 1990 identified the obligations of consultations with accommodations on affected Indigenous peoples if the government desired to justify infringement on Indigenous rights under section 35 of the Constitution Act 1982. With the acknowledgment of duty for consultation and accommodation set in Sparrow, Haida Nation set objective standards and guidelines for meaningful consultations. In modern times, most cases have been held that the government satisfies the duty to consult. 

One of these standards includes consultations being in good faith. Haida Nation acknowledges that meaningful consultations done in good faith may lead to obligations to accommodate the concerns of affected Indigenous groups. These accommodations vary with the land’s unique circumstances and local Indigenous peoples’ problems. These obligations also extend to legislation as held in Dene Tha’ First Nation v. Canada (Minister of Environment) 2006 and affirmed in Canada (Environment) v. Imperial Oil Resources Ventures Ltd. 2008.

It is important to note that Haida Nation limited the duty to consultation to include the inability to apply Indigenous veto rights to governmental actions and decisions pending final approval of land claims. Haida Nation also emphasizes that consultations must be in good faith from both sides. This includes the obligation of Indigenous negotiators not to frustrate the government’s reasonably good faith attempts nor hold unreasonable positions on government decisions as set in Halfway River First Nations v. British Columbia (Ministry of Forests) 1999. 

In the case of Rio Tinto Inc. v. Carrier Sekani Tribal Council 2010, the courts identified a three-step trigger when the legal obligation for consultation and accommodation arises. In Carrier Sekanil, a dam was planned that would severely alter the water levels and the region’s fishing. The Indigenous peoples from Haisla Nation were consulted, but those from the Carrier Sekani Tribal Council were not. This obligation for consultation and accommodation for a particular Indigenous group would be triggered if three principals were present. 

The first trigger is that the crown had knowledge, real or constructive, of the potential existence of Indigenous rights or titles set in the Haida Nation. These groups can be identified if there are pending negotiations or court cases from the groups involving the lands in question, as established in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005. The second trigger is the crown’s conduct and if its conduct engages potential Indigenous rights or titles. Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests) 2005 stated that government conduct is not confined to decisions that immediately impact lands, rights, resources, or titles. The third trigger is if there is a potential that the conduct would cause adverse effects on Indigenous claims or rights. These triggers are intertwined with the governmental obligation for consultation pending a final settlement disputed of land titles. The affected groups must show a correlation between proposed government conduct or decision and the impact on claims or rights. These effects can extend to include the inability of Indigenous peoples to exercise their rights as established in R v. Douglas 2007. 

In conclusion, the governments of Canada have a duty to consult and accommodate Indigenous peoples who would be adversely affected by their decisions and actions. These principles explicitly apply to lands that have ownership disputes by Indigenous groups. Consultation and accommodation are done in the name of reconciliation due to the past injustices of Canadian governments. Haida Nation is the leading case in this subject and codified when a duty of consultation and accommodation to Indigenous peoples arises, as well as its standards and limitations. Later, Carrier Sekani established which Indigenous group’s consultation obligations apply. Overall, the duty to consult and accommodate Indigenous people’s concerns stems from the desire for reconciliation and the prospect of ancestral land titles transferring to Indigenous groups, which may have irrefutable harm through government actions without consultation. 

References:

Legislation

  • Constitution Act 1982

Caselaw

  • Canada (Environment) v. Imperial Oil Resources Ventures Ltd. 2008
  • Dene Tha’ First Nation v. Canada (Minister of Environment) 2006
  • Haida Nation v. British Columbia (Minister of Forests) 2004
  • Halfway River First Nations v. British Columbia (Ministry of Forests) 1999
  • Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests) 2005
  • Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005
  • R v. Douglas 2007
  • R v. Sparrow 1990
  • Rio Tinto Inc. v. Carrier Sekani Tribal Council 2010

Books/Articles

  • Heckman G, Mullan D, Promislow J, Van Harten G, Administrative Law Cases, Text, and Materials (8th edn, Edmond 2022)

Another Way to Solve Vancouver´s Housing Crisis

It’s not a secret; Vancouver is one of the World´s least affordable cities, and it seems to be the only thing on Vancouver’s minds for the past decade. We blame foreign investors, lack of available housing, money laundering, our governments and almost anyone we can. 

However, we are missing something fundamental that links all these ¨causes¨ together.

One Critical Cause We Are Overlooking

Why is there such a high demand for a specific city when our Province is bigger than most countries?

Why does it only seem like people can live in Vancouver and nowhere else in the Province?

Foreign investors flock to expensive Vancouver over more affordable cities such as Victoria, Kelowna, Vernon or Kamloops. People born and raised in Vancouver refuse to move, even though they claim to be unhappy and to be pushed out of their “city” by increased rent. People from all over the country move to the Lower Mainland despite knowing its lack of affordability.

The reason for the madness:

Most people don´t want to move anywhere else in British Columbia because they believe there is nothing outside the Lower Mainland and a lack of economic opportunity in the rest of the province. 

Why do residents in the Lower Mainland think this?

Let´s look at a personal example of mine.

I was born and raised in Vancouver, 15 minutes from downtown. I moved to Switzerland for economic opportunity (Schooling at one of the best Hospitality Management Schools in the World), which is currently unavailable in Canada. 

The University is in a village of 300 people and a 2-hour drive or 3-hour train ride to the nearest international airport in Geneva.

I left for an internship in Barcelona, again for economic opportunity, with a population of 1.6 million. Then, I moved to a resort town 140,000 for a semester abroad.

After my time in Spain, I had the choice to move back to the village of 300 people, with a post office, three overpriced mediocre restaurants and an international airport, which was a 2-hour drive away, or I could move back to the Spanish city of 1.6 million, filled with world-class restaurants, entertainment, beaches and an international airport 25-minute drive away. 

The choice was a relatively easy one to make. Spain it is. 

This is a European example, but British Columbians face a similar dilemma every time their rent increases and their living expenses skyrocket.

The Common Vancouverite Dilemma 

British Columbians can move to Vancouver, an incredibly international city filled with some of the best restaurants and cafes in the country, large malls and shopping areas, beaches next to downtown, an internationally recognized sports team and a stone’s throw to a world-class award-winning airport.

Alternatively, they can move, for example, to Victoria, which is smaller and has historic charm but with similar unaffordability issues to Vancouver. They could move to Kelowna, which has a small international airport and some city amenities. They can move to Kamloops, known as the tournament capital of Canada (i.e. ice hockey), with limited city amenities and job opportunities.

Smaller city living can be excellent, yet a large population of Canada wants to have economic opportunities and access to a lifestyle that is only available in large international cities. Many people would never consider Kelowna, Victoria, Kamloops, or other smaller cities in British Columbia a viable alternative to Vancouver, resulting in an affordability crisis in Vancouver.

It’s not just foreign investors buying all of Vancouver´s housing; it’s Vancouverites’ attitude towards other cities in B.C., notably smaller cities. The lack of international city amenities and economic opportunity in other areas has reduced emigration from the Lower Mainland to other parts of B.C.  

Not to insult the beautiful and diverse towns of British Columbia, but this is the reality. We only have one international city with amenities and economic opportunities that are on par with other global cities in foreign countries. Vancouver is the only BC city competing with other global cities for job opportunities and international amenities. 

The Solution

Vancouver wasn´t always an international city. Instead, it developed into a renowned city thanks, in part, to the Expo 86´ and, later, the Vancouver Olympics. Because of these world events, Vancouver received a large amount of investment capital from governments, companies, and investors, which was used to improve, develop and expand the city for an international audience. 

From this, we can see the requirements other British Columbian cities need to compete with Vancouver:

British Columbia´s smaller towns and cities need investments from businesses, governments and private citizens to increase the amenities and economic opportunities it provides to its inhabitants and increase the number of inhabitants away from overpopulated Vancouver. 

Over-Developed Neighborhood Theory

People move to other neighbourhoods if a neighbourhood gets too expensive due to demand in the area surpassing supply. This emigration brings the establishment of new cafés, entertainment venues, restaurants, and shops in different places because of the increased population and income bracket. This is also called gentrification. The result is that another neighbourhood develops, attracting more people than before, and the cycle continues. 

Think of Vancouver as an overdeveloped neighbourhood. The natural next step is for people to leave and turn other cities and towns into beautifully developed ones filled with new restaurants, cafes, shops, and entertainment, which creates more jobs and brings more people into the area. Then, as a result, the city will become more sought after, and the cycle continues into surrounding towns. 

Increased Populations and their Effects

We already see increased populations in British Columbia and other small cities across Canada. Kelowna and Victoria have seen an increase in inhabitants over the last decade, most of which is due to Vancouver´s unaffordability. 

Due to the increased population moving outside Vancouver, we are seeing new businesses open or move to these cities, creating more amenities and jobs in the local area. This economic boost creates more amenities, services, and opportunities for people in the area and, therefore, attracting more people to the area. As a result, the non-Vancouver cities have more appeal for people looking for a career, services and housing when priced out of Vancouver. There is also the added benefit of local governments having more taxes to develop their region. 

It will take at least a decade or two to fully see the effects of developing other towns and cities in BC to reduce the Vancouver housing crisis. Still, it’s a natural solution that I feel has not been openly discussed as part of the solution to the housing crisis in Vancouver. Simply put, another way to fix Vancouver’s housing crisis is to make the rest of British Columbia very attractive to people looking for city amenities, services, and jobs, just as Vancouver has. 

Initially written in 2019, updated in 2024

Defining Parliamentary Sovereignty in The United Kingdom

(Originally Written for Bachelor of Law at Birkbeck, University of London) 

Introduction

Parliamentary Sovereignty is the notion that parliament can create, repeal, or override any statute it desires with minimal limitations. In addition, parliament is not bound by its precedent and cannot bind its successor. The House of Commons and its statute are superior to the Executive and Judiciary, solidifying Parliament’s Sovereignty. Through the judiciary, judicial review and the compatibility of other laws can be used to question recent House of Commons actions. Through the Executive, the monarchy and the House of Lords must pass and assent to all bills passed by the House of Commons.

Doctrine of Parliamentary Sovereignty

Parliamentary acts are the constitution’s primary source, thus creating Parliament Sovereignty for the House of Commons. Parliament does not have limits to its statutory powers as it can repeal or override previous statutes, in addition to creating new laws. Parliament Sovereignty established the precedent to develop legislation on any subject matter desired, thus creating superiority over other governmental operations. Unlike other forms of government, parliament is not bound by precedent decisions, nor can it bind its successor, thus creating a new Parliament Sovereignty governmental body after every election. The implications of the Human Rights Act 1998, the European Communities Act 1972 and the Constitutional Reform Act 2005 have constructed limitations to parliament and, therefore, to Parliament Sovereignty. However, these power-limiting acts could be repealed and changed if parliament yearned, as seen in the European Union (Withdrawal) Act 2018 regarding the European Communities Act 1972.

Parliamentary Sovereignty Regarding Executive and the Judiciary

The Judiciary and Executive governmental branches are inferior to the House of Commons, though they are minor limitation components of Parliament’s Sovereignty. Judges produce everyday law decisions through the judiciary branchby interpreting legislation to ensure its compatibility with constitutional acts, such as the Human Rights Act 1998 or the European Communities Act 1972. Judges can rule on governmental decisions through judicial review, though the merit of a governmental decision would not be questioned. As a result, judicial review creates a minor limitation on Parliament’s Sovereignty, which could be overruled or repealed by the House of Commons. An example of parliament nullifying legislation in its favour can be seen in enacting the War Damage Act 1965 as a reaction to the adverse decisions held in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965].

In the Executive branch of government, the Monarch is expected to consent to all bills passed by the House of Commons and House of Lords. The House of Lords cannot prevent the passing of bills endorsed by the House of Commons but may delay enactment. Through the Parliament Act 1911, lords’ powers to veto public bills were annulled, creating one aspect of the modern Parliament Sovereignty. 

Conclusion 

Statute is the superior constitutional power that only parliament possesses, thus creating Parliamentary Sovereignty. In addition, the power to create, repeal, or override relies on the House of Commons. The Judiciary and Executive governmental branches are bound to the decisions of the House of Commons, assisting in the forging of Parliamentary Sovereignty.  

References:

Legislation

  • The Constitutional Reform Act 2005
  • The European Communities Act 1972
  • The European Union (Withdrawal) Act 2018
  • The Human Rights Act 1998
  • The Parliament Act 1911
  • The War Damage Act 1965

Caselaw

  • Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] A.C. 75

Books/Articles

  • Loveland I, Constitutional Law, Administrative Law, and Human Rights A Critical Introduction (8th edn, Oxford University Press 2018)

Initially Written in May 2020