Judicial Treaty Federalism and the Reconciliation of Ontario's Duty to Consult

• Main Author: Garay, Charles
• Format: Thesis
• Language: unknown
• Published: 2021
• Subjects: First Nations
• Online Access: https://curve.carleton.ca/8561fc18-034a-422a-ba82-551f91fccb43; https://doi.org/10.22215/etd/2021-14515; https://ocul-crl.primo.exlibrisgroup.com/permalink/01OCUL_CRL/j2o5om/alma991022898922405153

This dissertation examines the role of the Canadian judiciary as a bridge between Indigenous and settler legal traditions, and the ability of jurisprudence to frame the recognition of Indigenous sovereignty by settler governments. It is asked whether First Nation consultation policies in the province of Ontario incorporate judicial language on the Crown's "duty to consult and accommodate" on matters affecting recognized or asserted Aboriginal and treaty rights. These duties impose limits to the exercise of Crown sovereignty in Indigenous territories, and the way these principles are implemented in policy implies different understandings of treaty law and the sources of sovereignty in Canadian federalism. This research describes the relationship between courts and legislatures as a dialogue, and looks to 19th and early 20th-century decisions of the Judicial Committee of the Privy Council for previous examples where courts have altered the distribution of sovereignty between provincial and federal governments. This logic can be reapplied in an Indigenous context, where the addition of Section 35 to the Constitution Act, 1982 provided a legal link between treaty law and the Canadian constitution. The role of judges in interpreting law which both has constitutional status and exists outside the main constitutional document is described as "judicial treaty federalism", incorporating elements of "treaty federalism" in Canadian political science literature and "judicial federalism" in American literature. After reviewing key Supreme Court cases on the duty to consult and the role of provincial Crowns in its application, this dissertation examines current legislation and consultation policy in Ontario for adherence to these legal principles. Semi-structured interviews with both provincial civil servants and First Nations leaders provide insight into policy implementation. This research concludes that a common law framework exists for the recognition of Indigenous legal orders, but recognition has not permeated the policymaking process in Ontario. Decentralized consultation policy, poor communication and aspecific guidance, and the Crown's unilateral rights assessment are all major contributors to this discrepancy between law and policy. Negotiation and policy change will be necessary to close this gap, but public servants can also adopt best practices to improve Crown-Indigenous relations until updated policy is implemented.