Volume 13: Issue 1 (2017)
Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation?
Rachel Ariss, Clara MacCallum Fraser & Diba Nazneen Somani
Abstract: Following a trilogy of Supreme Court decisions in 2004–2005 that found a constitutional duty to consult and accommodate Aboriginal peoples, provincial policies were introduced to guide fulfillment of those duties. This paper analyzes Crown policies on consultation and accommodation of Aboriginal peoples with consideration to the role of reconciliation in fulfillment of the duty, arguing that measuring the policies against a transformative understanding of reconciliation reveals their abilities to foster change. According to the Truth and Reconciliation Commission of Canada (TRC), reconciliation requires rebuilding nation-to-nation relationships of respect between Aboriginal peoples and the Crown. The authors ask whether the policies guiding the practice of the duty to consult and accommodate are able to facilitate building new relationships towards reconciliation through a comparative analysis of four areas key to meaningful consultation: delegation to third parties; practicalities of funding and response times; accommodation; and the extent to which policies allow for equal collaboration with Aboriginal peoples in the process. The authors conclude that while several of the policies include a few provisions that support new relationships and address power imbalances, these policies frame the duty to consult and accommodate primarily as a process that may alter aspects of Crown decision making, rather than as a process meant to work towards reconciliation.
The Evolution of Canadian Water Law and Policy: Securing Safe and Sustainable Abundance
Jamie Benidickson
Abstract: Canadian water law has evolved over an extended period of time as a complex mixture of federal and provincial legislation and case law with provincial arrangements influenced by both riparian and prior appropriation doctrine as well as by the civil law tradition of Quebec. The article reviews highlights from the long-term evolution of Canadian water law, policy and institutions following a chronological path from Confederation in 1867 to the present. Three key shifts that have more recently begun to appear in background assumptions of Canadian water law are then identified. In particular, it is noted (1) that general confidence in the abundance of water is giving way to concerns over security and occasional scarcity, (2) that the primacy of human water uses is gradually being moderated by acknowledgement of the importance of environmental flows, and (3) that international considerations may be relevant to a greater degree than previously contemplated. The concluding section of the paper presents emerging policy directions in relation to the legacy of historic water law and policy decisions and the shifting assumptions previously reviewed with emphasis on sustainability, conservation initiatives and watershed frameworks.
Nora Aït-Aïssi Paillon
Abstract: Operationalizing the imperative for sustainable development, as established by the international community in the last thirty years is, without a doubt, a major challenge of this century. The economic emergence exemplified by China and Brazil today shows with clarity both the difficulty and necessity of governance capable of meeting this challenge. Economic growth which, in both cases, was achieved as a result of heavy environmental and social costs seems to show that international organizations are incapable of implementing sustainable development objectives. What if a new avenue came from emerging countries themselves? This article analyses the ways in which these new economic powers could paradoxically serve as instigators of alternative sustainable development governance models. Under international law, the possible influence of emerging countries seems stymied by a number of concepts and legal principles that invite a concerted global mobilization for human and environmental issues of planetary scope. However, the principle of national sovereignty, in conjunction with the necessarily evolutive dimension of the concept of sustainable development seems, on the other hand, to support state initiatives. Factual circumstances also tend to support our analysis; the social and environmental impact related to China and Brazil’s economic rise has opened the path for promising political initiatives which seem, in both cases, to anticipate a growth model more in line with the spirit of sustainable development. With newly found political legitimacy, the two countries benefit from bolstered influence at the international level, which could favour strides towards another governance model.
Case Comment—Washington v. Brockway: One Small Step Closer to Climate Necessity
Lance N. Long and Ted Hamilton
Katherine Lofts, Sharowat Shamin, Sharaban Tahura Zaman & Dr. Robert Kibugi
