Tuesday, July 10, 2007

"Duty to Consult"?

If you were going to pick the most important development in the Supreme Court of Canada in the last decade, you could do worse than the proliferation of constitutional duties to consult. The Red Nine have imposed such duties in relation to judicial compensation, land use decisions affecting aboriginals, the secession of Quebec, and now public sector labour legislation.

At the University of Alberta law blog, Peter Carver takes note of this development, and hopes it represents "an intriguing effort to expand the constitutional base for deliberative democracy in Canada." We mix it up in the comments box.

The discussion has helped me figure out what I dislike about these duties. The common law's general attitude to negotiation is to put a veil over the process and be hard line about enforcing the results, so long as everyone's an adult and had a chance to get appropriate advice. Government decision-making, on the other hand, has typically attracted the requirements of a hearing and an unbiased decision maker.

The "duty to consult" is neither fish nor fowl. As Carver puts it, "TThe goal must be to seek a mutually acceptable resolution to the dispute at hand, even if a solution is not found." A unilateral decision isn't excluded, but if it happens the courts may review the attempts at bilateral compromise to determine if they were conducted nicely enough. The trouble is that the negotiations will therefore be conducted with an eye on how a court will interpret them, which is inconsistent with genuine negotiation. Moreover, the whole development is the opposite of trying to create clearly-defined rights in the event of a bargaining impasse, which is how negotiation is actually facilitated.

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