Research publications

Section 33(1) of the Canadian Charter of Rights and Freedoms (the Charter) permits Parliament or the legislature of a province to adopt legislation to override certain rights and freedoms for a limited period, subject to renewal. This HillStudy sets out the content of section 33, the sequence of events leading to its adoption in 1981, and the way in which its drafters, parliamentarians and others at the time expected it would be used. It then goes on to describe the circumstances in which the notwithstanding clause has been invoked. Lastly, it presents a number of arguments for and against the use of the clause.

At the federal level, there are several sequential stages that must be completed for a policy proposal to be transformed from an idea into a law. The process involves all three components of the legislative branch (the Sovereign, the Senate and the House of Commons) operating in concert. In the case of government bills, these stages are the Cabinet stage, the parliamentary stage, the Royal Assent stage and the coming-into-force stage This paper discusses the legislative process for government bills.

First Nations, Inuit and Métis peoples in Canada1 have unique rights that are guaranteed under section 35 of the Constitution Act, 1982. Section 35 recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples. As a way to protect these rights, the doctrine of the duty to consult and, where appropriate, accommodate Indigenous groups, was developed by Canadian courts. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in 2010, provides that member states must consult and cooperate with Indigenous peoples on certain matters, such as “legislative or administrative measures that may affect them,” in order to obtain their free, prior and informed consent. As stated by the Supreme Court of Canada (Supreme Court), the general purpose of the duty to consult is to foster reconciliation. Thus, the duty to consult doctrine is of fundamental importance to Indigenous communities and Indigenous governments, as well as to federal, provincial and territorial governments, private industry stakeholders and Canadian society as a whole. This paper examines the origins and evolution through the courts of the duty to consult. It first provides background information on the duty to consult. It then discusses, at a more practical level, who is involved in consultations, how and when the duty is engaged, the scope and requirements of consultation and accommodation and the circumstances in which consent is required. It further examines whether the duty to consult applies in the context of legislative processes. It concludes by providing information on guidelines that have been developed and updated by Indigenous communities and organizations and federal/provincial governments in response to emerging case law and that inform the implementation of the duty to consult.