Administering Consultation at the National Energy Board: Evaluating Tribunal Authority

[From Introduction]: "Over the course of the last thirty years, section 35(1) of the Constitution Act, 1982 has shifted governmental engagement with Aboriginal peoples from a matter of executive discretion to a matter of legal right. While there are differences over the scope, content, and protections of those rights, the jurisprudence has first and foremost clarified that disputes over competing uses can be settled in law. Nevertheless, if past jurisprudence has focused on the duty of the executive, the authors argue here that there has been little clarity surrounding the duty of administrative tribunals to adhere to the legal requirements of section 35(1) in regulating resource use.  The Supreme Court of Canada has affirmed the authority of tribunals to administer Aboriginal rights  and to evaluate the Crown’s duty to consult.  Moreover, the courts are willing to treat tribunal proceedings as part of a larger framework for achieving consultation.  Yet, even though courts have implicated tribunals in the task of ensuring that rights are respected, key decisions have seemingly released tribunals from the legal strictures of the jurisprudence on section 35(1). As a consequence, it is unclear whether tribunals can use their own methods of evaluation or whether they are required to assess consultation in accordance with the legal criteria established by the Supreme Court."