Duty to Consult
This section of the Constitution Act, 1892 guarantees existing aboriginal and treaty rights of the aboriginal peoples of Canada.
What is section 35?
This is the trigger for bias/impartiality and independence – hint: it is the same as the common law trigger.
What is the Cardinal/Knight test?
This case sets out the relevant factors for Independence.
What is Valente?
Public inquiries rely on this test.
What is somewhere between the strict and flexible closed mind spectrum?
The source of the duty to consult is grounded in this concept.
What is the honour of the Crown?
This case sets out the general test for reasonable apprehension of bias.
What is Committee for Justice and Liberty v NEB; and adopted in Baker?
This case offers guidance on the meaning of “Security of tenure” and “financial security”.
What is Canadian Pacific?
The key players in the administrative state are these two branches.
What are the legislative and executive branches?
In this case, the duty to consult was held to not be limited to Aboriginal rights/title claims, but also to execution of written treaties.
What is Misikew Cree?
These two factors are relevant to determining whether there is a lack of impartiality due to the association between the party and ADM.
What are nature of the relationship and timing and currency of the relationship?
Ocean Port Hotel states that Independence may be ousted in this context.
What is Statutory Authorization?
Elected ADMs use this test for impartiality.
What is the closed mind test?
Haida provides that this type of execution of the duty to consult can be delegated.
What is procedural?
In Save Richmond Farland, La Forest J held that decisions and the legislative end of the spectrum should be able to be made with a closed mind, if the closed mind is not the result of this factor.
What is corruption?
Valente sets out these three factors for Independence.
What are Security of Tenure, Financial Security, and Administrative Independence?
In hierarchical order, legally the Constitution and Bill of rights is at the top when placing limits on the administrative state. Practically, this limit is at the top.
What are policies and guidelines?
Tsilhqot’in Nation provides three remedies in the event the duty to consult isn’t satisfied – injunctive relief, an order to satisfy the duty and this.
What are damages?
This case sets out the general test for institutional bias.
What is 2747-3174 Québec Inc. v Que.?
The test for Independence is this type of test.
What is an objective (“reasonable person”) test?
These are the three key principles that underlie administrative law.
What are the rule of law, parliamentary sovereignty/supremacy, and separation of powers?