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Aboriginal/Indigenous

Aboriginal Rights and Duty to Consult

Sparrow framework, Haida duty.

Sparrow (1990) sets the analytical framework for s.35(1): existing Aboriginal rights survive in their unencumbered form, and infringement requires Crown justification (valid objective; honour of the Crown; priority; minimal impairment; consultation; possible compensation). Haida (2004) extends the duty to consult and accommodate to the pre-proof phase, triggered by the honour of the Crown when Crown conduct may adversely affect asserted rights. Daniels (2016) confirms that Métis and non-status Indians fall within s.91(24).

Key principles

  • Sparrow infringement and justification
    Two-step analysis: prima facie infringement, then Crown justification.
  • Pre-proof duty to consult
    Triggered when the Crown has knowledge of a potential right and contemplates conduct that may adversely affect it.
  • Honour of the Crown
    Source of consultation, accommodation, and good-faith negotiation duties.

Cases (3)

R v Sparrow

landmark
[1990] 1 SCR 1075
Supreme Court of Canada· 1990· Aboriginal/Indigenous

Haida Nation v British Columbia (Minister of Forests)

landmark
[2004] 3 SCR 511
Supreme Court of Canada· 2004· Aboriginal/Indigenous

Daniels v Canada (Indian Affairs and Northern Development)

landmark
[2016] 1 SCR 99
Supreme Court of Canada· 2016· Aboriginal/Indigenous