Do Administrative Tribunals Owe the Duty to Consult?
As arm’s length, independent, quasi-judicial decision-making bodies, administrative tribunals do not owe the Crown’s constitutional duty to consult with Aboriginal groups. This was confirmed by the Supreme Court of Canada in Québec (Attorney General) v. Canada (National Energy Board), [1994] 1 SCR 159. In this decision, the Supreme Court of Canada held that the NEB did not have a fiduciary obligation to Aboriginal groups and warned that courts must be careful not to compromise the independence of administrative tribunals by imposing upon them fiduciary obligations. Similarly, the Haida Decision recognized that although the Crown may delegate procedural aspects of consultation to industry proponents (as is often done in environmental assessments), the ultimate legal responsibility for consultation and accommodation rests with the Crown. This perspective was most recently reinforced in Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 and Kwikwetlem F
