Suchergebnisse

This article is intended as a companion piece to Øyvind Ravna's contribution to this anniversary volume. It maps the development of the duty to consult in Canadian law since the seminal decision of the Supreme Court of Canada inHaida Nation v British Columbiain 2004. The article begins by briefly examining the first references to the duty to consult in 1990 before turning in Part 2 to the transformation of the duty inHaida Nationand a doctrinal analysis of the various elements of the duty. Part 3 examines the international standard of free, prior and informed consent (FPIC) as developed in the UN Declaration on the Rights of Indigenous Peoples as well as the implications of legislation that aims to give effect to the Declaration in federal or provincial law. The conclusion to the paper offers some comparative comments on Norway and Canada regarding the development of the duty to consult. These comments emphasise that whereas consultation and FPIC obligations in Norway are firmly rooted in international law, and, in particular, in the International Labour Organization's Convention on Indigenous and Tribal Peoples (ILO C-169), this is not the case in Canada. In Canada, the duty to consult and accommodate finds its origins in domestic law and the entrenchment of aboriginal rights in the Constitution in 1982. However, more recent discussions over the implementation of the UN Declaration in federal and provincial law have inevitably broadened the discourse to include international law and the FPIC standard.

Includes bibliographical references and index

This article is intended as a companion piece to Øyvind Ravna's contribution to this anniversary volume. It maps the development of the duty to consult in Canadian law since the seminal decision of the Supreme Court of Canada in Haida Nation v British Columbia in 2004. The article begins by briefly examining the first references to the duty to consult in 1990 before turning in Part 2 to the transformation of the duty in Haida Nation and a doctrinal analysis of the various elements of the duty. Part 3 examines the international standard of free, prior and informed consent (FPIC) as developed in the UN Declaration on the Rights of Indigenous Peoples as well as the implications of legislation that aims to give effect to the Declaration in federal or provincial law. The conclusion to the paper offers some comparative comments on Norway and Canada regarding the development of the duty to consult. These comments emphasise that whereas consultation and FPIC obligations in Norway are firmly rooted in international law, and, in particular, in the International Labour Organization's Convention on Indigenous and Tribal Peoples (ILO C-169), this is not the case in Canada. In Canada, the duty to consult and accommodate finds its origins in domestic law and the entrenchment of aboriginal rights in the Constitution in 1982. However, more recent discussions over the implementation of the UN Declaration in federal and provincial law have inevitably broadened the discourse to include international law and the FPIC standard.

This article deals with the duty to consult indigenous peoples and the obligation to involve these peoples in decision-making processes in matters that concern them. After a general review of international legislation and obligations, particularly the ILO Convention no. 169 on Indigenous and Tribal Peoples, the article focuses on how these obligations are implemented towards the indigenous Sámi in Norwegian law. Here, the consultation agreement from 2005 and the Sámi Rights Committee's 2007 draft are still central. The review includes an analysis of the extent to which these duties meet international law requirements, and a deliberation on the concept of free, prior and informed consent.

This article deals with the duty to consult indigenous peoples and the obligation to involve these peoples in decision-making processes in matters that concern them. After a general review of international legislation and obligations, particularly the ILO Convention no. 169 on Indigenous and Tribal Peoples, the article focuses on how these obligations are implemented towards the indigenous Sámi in Norwegian law. Here, the consultation agreement from 2005 and the Sámi Rights Committee's 2007 draft are still central. The review includes an analysis of the extent to which these duties meet international law requirements, and a deliberation on the concept of free, prior and informed consent.

This article deals with the duty to consult indigenous peoples and the obligation to involve these peoples in decision-making processes in matters that concern them. After a general review of international legislation and obligations, particularly the ILO Convention no. 169 on Indigenous and Tribal Peoples, the article focuses on how these obligations are implemented towards the indigenous Sámi in Norwegian law. Here, the consultation agreement from 2005 and the Sámi Rights Committee's 2007 draft are still central. The review includes an analysis of the extent to which these duties meet international law requirements, and a deliberation on the concept of free, prior and informed consent.

Whether executive action attracts a duty to consult has been contested judicial terrain. In this article, we aim to contribute to the development of a principled approach to requiring consultation in executive decision-making. We grapple with the distinction between procedural fairness as a requirement of just administrative action and procedural rationality as a requirement of the principle of legality. We then move beyond these labels by engaging with the values underlying the Constitution's vision of participatory democracy. Despite contradictions in the case law, we suggest that the developing requirement of "procedural rationality" as a basis for a duty to consult offers fertile ground for advancing the values of accountability, responsiveness, and openness in executive decision-making. We therefore encourage recognition of participatory democracy as the normative framework within which the rationality of executive decision-making should be substantively assessed. Finally, we demonstrate that links between participatory democracy, a duty to consult, and executive decision-making have some grounding in existing case law, which, we argue, can be further developed.

This dissertation investigates whether or not there is a duty on the employer to negotiate with workers on issues that affect their employment security. The research focuses on why there is no duty on the employer to negotiate with workers in regard to retrenchment, closure and transfer of undertakings. It also examines the--factors that are obstacles to the existence of such a duty. Furthermore, the effects of ·such _non - negotiation on the workers' job security and on efficiency as well as productivity of the undertaking are looked at. It also evaluates whether the results suggest that unilateralism in these respects is making a useful contribution to the realisation of the principal aim of ,the LRA -industrial peace. The method of investigation has largely been literature review and to a certain extent / comparative. It analyses primary and secondary sources. Theoretical guidance was drawn from critical studies in labour law and industrial relations. The study reveals that there is no duty on the employer to negotiate with workers regarding retrenchment, closure and transfer of undertakings. Consequently, it argues that, for job security to ensue, industrial peace to prevail, business efficiently and productivity to abound, the employer should be compelled to bargain or negotiate with workers. This duty should be clearly stipulated in legislation. It further argues that consultation should be geared towards agreement. If agreement cannot be reached on the issues under consideration, it argues that the status quo should be maintained, that is no change to existing conditions should be implemented until a deadlock- breaking mechanism resolves the matter. The aim of the work is threefold. First, it seeks to make a modest contribution to the understanding and importance of the duty to negotiate in labour law and industrial relations · for post -Apartheid south Africa. Second, it disputes and, in large measure, seeks to contradict earlier justifications for refusing to compel the employer to negotiate with workers in regard to retrenchment, closure and transfer of undertakings. Third, it attempts to provide insight into how this duty can best be rendered more meaningful and equally beneficial to workers and employers. Turning to the assessment, it finds that the insistence on duty to consult as opposed to duty to negotiate is pro -management and that it dangerously puts our labour relations into the horns of a dilemma. Furthermore, such an approach is out of touch with democratic developments in the country as well as the expectations of the industrial relations community. Lastly, it finds that the duty to consult is not as useful as the one to negotiate. It accordingly proposes that the employer be under a legislative obligation to negotiate and reach consensus with workers on issues affecting job security.

no abstract