Comparing Canadian and Colombian Approaches to the Duty to Consult Indigenous Communities on International Treaties
Bibliographic record
Abstract
In recent years, the development in Canada of a constitutional duty to consult Indigenous communities has had ramifications on government decision-making that are widespread, far-reaching, and potentially expansive. The modern duty to consult doctrine developed in a series of cases in 2004-2005, ensuring that governments have a duty to consult proactively with Aboriginal communities whose Aboriginal or treaty rights may be adversely impacted by a particular administrative decision, even in the face of uncertainty about the scope of asserted rights in the absence of a final settlement or court decision. Case law development on the duty later established that the duty is also triggered in the context of an early, strategic decision that may determine later administrative decisions. Some have put forth the argument that the duty may be triggered prior to the adoption of legislation; adjudication on that issue is currently making its way forwardthrough the courts. The Hupacasath First Nation case, recently decided at the Federal Court of Appeal, raised another question, that of whether or not consultation was owed to Aboriginal communities in the context of international treaty negotiations. Although the federal government has actually engaged in such consultation in some instances so as to avoid infringing Aboriginal and treaty rights, the case raised the complex question of whether it is constitutionally required to do so in order to comply with the duty to consult doctrine. On the particular facts of the case, the issue concerned the Canada-China foreign investment treaty, which the Hupacasath First Nation argued was apt to lead to later infringements on Aboriginal rights. Both the Federal Court and the Federal Court of Appeal rejected these arguments. Their rejection has broader implications, but we shall argue that it leaves open the possibility that the negotiation of some internationaltreaties may trigger the constitutional duty to consult, thus opening a complex nexus between constitutional and international law.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.000 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.005 | 0.004 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.001 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; both teacher heads agree on what is shown here.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".