Sharing, Reconciliation, and the Ethics of the Other: Indigenous Perspectives on Treaty Relationships and the Duty to Consult in Canada

The constitutional duty to consult has become one of the central principles governing Crown–Indigenous relations in Canada. Although constitutional and administrative law scholarship has extensively analyzed the duty’s doctrinal framework, this article asks how Indigenous treaty philosophies can illuminate its jurisprudential purpose as an expression of continuing relationships. This article explores that question by examining how Indigenous relational understandings of treaties illuminate the development of consultation jurisprudence. Through an analysis of the Supreme Court of Canada’s decisions in Haida Nation v. British Columbia (Minister of Forests), 2004, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004, and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005, it argues that, despite arising in markedly different legal contexts, these decisions converge in recognizing that Indigenous relationships with traditional territories persist beyond reserve boundaries and continue to generate reciprocal obligations on the part of the Crown. Read through Indigenous treaty philosophies, consultation emerges as more than a procedural doctrine regulating governmental decision-making. It can also be understood as a contemporary legal expression of the enduring relationships established between Indigenous nations and the Crown. Rather than suggesting that Canadian courts have adopted Indigenous understandings of treaties, the article argues more modestly that Indigenous treaty philosophies reveal an interpretive dimension of consultation jurisprudence that helps illuminate how the duty to consult may be understood more consistently with the constitutional commitment to reconciliation.