Federal Court of Appeal Says There is No Duty to Consult on Legislation

Does the Crown have a duty to consult when contemplating and introducing legislation that may adversely impact aboriginal rights? In its recent decision in Canada (Governor General in Council) v. Courtoreille, the Federal Court of Appeal (Court) said no, but the Court’s decision may not be the last word on the topic.

BACKGROUND

Chief Steve Courtoreille, on behalf of himself and the members of the Mikisew Cree First Nation (Mikisew Cree), filed a judicial review application seeking declarations that the federal government had a duty to consult the Mikisew Cree when it developed and introduced two omnibus bills that reduced federal environmental oversight of projects that had the potential to negatively affect the Mikisew Cree’s treaty rights, and that the federal government had breached that duty, among other things. 

In particular, the Mikisew Cree challenged the former federal government’s development and introduction in 2012 of the controversial Bills C-38 and C-45, which resulted in the repeal and replacement of the former Canadian Environmental Assessment Act (CEAA) with CEAA 2012, as well as significant amendments to the Fisheries Act, the Canadian Environmental Protection Act, 1999, the Navigation Protection Act, and the Species at Risk Act. The omnibus bills reduced the types of projects that were subject to federal environmental assessment and the federal government’s legal oversight of various activities.

While Bills C-38 and C-45 were the subject of significant public debate at the time (remember the Idle No More! movement and protests), the government did not undertake any form of formal consultation with First Nations before their introduction into Parliament. As a result, from a constitutional perspective, the Mikisew Cree argued that the reduction in federal environmental oversight could adversely affect their treaty rights to hunt, fish and trap, and therefore the federal government should have consulted with them during the development of the legislation. Indeed, the federal government conceded that the effect of the omnibus bills upon the Mikisew Cree’s rights was not speculative and that the legislation could undoubtedly affect other similarly situated Aboriginal Peoples.

In the Federal Court Trial Division, Justice Hughes rejected the majority of the Mikisew Cree’s arguments. However, he still found that certain provisions of the Navigation Protection Act and the Fisheries Act triggered the duty to consult. As a result, Justice Hughes found that the federal government had a duty to give notice to the Mikisew Cree and to provide them with a reasonable opportunity to make submissions on these proposed provisions. The scope of the duty did not result in a duty to accommodate because the provisions had not yet been applied to any specific situation that would trigger the higher end of the consultation spectrum.

Both Chief Courtoreille and the federal government appealed to the Federal Court of Appeal. 

FEDERAL COURT OF APPEAL’S DECISION

Chief Courtoreille and the Mikisew Cree were careful to frame their application as a request for judicial review of the process undertaken by various ministers prior to the drafting and presentation of Bills C-38 and C-45 to Parliament; that is, what they characterized as the policy development stage of the process. Framing the application in this way was important to ensure that the Court would have jurisdiction over the application. Under section 18 of the Federal Courts Act, the Court has exclusive jurisdiction to grant declaratory relief against any “federal board, commission or other tribunal.” However, under subsection 2(2) of the Federal Courts Act, a “federal board, commission or other tribunal” does not include the Senate, House of Commons, or any committee or member of either House.

The Mikisew Cree argued that a distinction can be drawn between ministers acting as policy-makers and ministers acting as legislators, and that the legislative process can be divided between a policy development phase and a purely legislative phase of the process. As the Mikisew Cree sought judicial review of the ministers’ policy-making decisions, they argued that their application was not barred by the provisions of the Federal Courts Act.

In response, the federal government argued that the legislative process is indivisible, such that every step that precedes the introduction of a bill into Parliament is an aspect of the legislative process and therefore immune from judicial review.

The majority of the Court (Justices De Montigny and Webb) agreed with the position of the federal government and found that section 18 of the Federal Courts Act precluded the Court from judicially reviewing the legislative process, including any policy development aspect of that process. While the majority found that the appeal could have been disposed of on that basis alone, it went on to consider the application on its merits.

From a procedural perspective, the other member of the Court, Justice Pelletier, appears to have agreed that the Mikisew Cree’s application must fail as an application for judicial review. However, he found that the application, although procedurally flawed, was justiciable as a claim for relief against the Crown pursuant to section 17 of the Federal Courts Act. As a result, Justice Pelletier also conducted an assessment of the Mikisew Cree’s application on its merits.

Separation of Powers and Principle of Parliamentary Privilege

The doctrine of parliamentary privilege and the separation of powers addresses the roles of the judiciary, the executive, and the legislative branches of government, in this case Parliament, in the legislative process. The majority of the Court found that these principles dictate that the courts’ role in assessing the legitimacy of legislation only comes after legislation is enacted (except when a court’s opinion is sought by a government on a reference). This ensures Parliament’s independence from the judiciary, including the executive’s role in the development and introduction of legislation.

While these principles are not constitutionally entrenched, the majority of the Court found that they are well-established and have frequently been recognized by courts (the Court cited Re: Resolution to amend the Constitution and Wells v. Newfoundland). Indeed, as expressed by the majority, if “there is one principle that is beyond any doubt, it is that courts will not supervise the legislative process and will provide no relief until a bill has been enacted.” On this basis, while the majority expressed that it is good politics to engage stakeholders such as First Nations on legislative initiatives that might affect them, and that, following the formal adoption of a statute, consultation prior to the adoption of that statute might be a key factor in determining whether the infringement of an aboriginal or treaty right is justified, imposing a duty to consult would constitute “undue judicial interference on Parliament’s law-making function, thus compromising the sovereignty of Parliament.” As the result, the majority upheld the federal government’s appeal and dismissed the Mikisew Cree’s cross-appeal.

Justice Pelletier was not as convinced. In his view, the argument about the separation of powers conflated two questions:

  1. Does the duty to consult arise?
  2. If it does arise, how is it to be given effect?

Justice Pelletier felt that it was not beyond the courts’ ingenuity to craft an appropriate approach if the duty was in fact triggered.

Notwithstanding this, Justice Pelletier also allowed the appeal and dismissed the cross-appeal. Justice Pelletier focused on the nature and scope of the legislation at issue and found that the duty to consult was not triggered by Bills C-38 and C-45, which he found were laws of general application applying to the whole of Canada and all Canadians.

IMPLICATIONS

We won’t comment further on the Court’s decision dealing with its jurisdiction under the Federal Courts Act. This aspect will be of interest to those considering bringing an application of a similar nature but doesn’t ultimately affect the resolution of the broader question of whether governments have a duty to consult Aboriginal Peoples on legislation that may affect their rights.

On the merits, it seems unlikely that the Court’s decision will be the last word on this topic. As many will remember, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the Supreme Court of Canada (SCC) expressly left open the question of whether legislative action constitutes the type of Crown conduct that triggers the duty to consult. Given this, the SCC might want to hear and decide this issue.

If it does, the SCC will have to address a number of issues. One of these is that, as pointed out by the majority, the doctrine of the separation of powers is well-recognized and has been relied on by the SCC before. However, as also recognized by the majority, there is a clear tension in the case law between the doctrine of the separation of powers and the duty to consult that has developed as a result of section 35 of the Constitution Act, 1982.

Interestingly, notwithstanding that the majority recognizes this tension, there is virtually no discussion in the majority’s decision of the section 35 side of the equation, including the purposes that section 35 is designed to serve and how the role of Aboriginal Peoples outlined in the majority’s decision serves these principles. While this may not dictate a different outcome, if the SCC considers this issue, it will likely have to define the extent of section 35 rights vis-à-vis legislative powers, and how each constitutional principle limits the other.

Another noteworthy aspect of the appeal is the federal government’s position. While it was the former Conservative government that introduced and passed Bills C-38 and C-45, the appeal was not argued until 2016. Given this, it was the current federal government that continued to argue that the duty to consult does not extend to the legislative process. This is interesting as it could be argued that this position conflicts with the provisions of the United Nations Declaration of the Rights of Indigenous Peoples on the role of Indigenous Peoples in the development of legislation that might affect them — provisions that the new government expressly adopted earlier in the year.

In any event, it is likely to be some time before there is a more definitive answer to this question. Further, unlike regulatory processes, where industry proponents may have the opportunity to supplement Crown consultation, it appears unlikely that there would be the same opportunities during the development of new legislation for industry members to take similar risk mitigation measures. As a result, industry participants may want to consider potential measures to mitigate the risk of legislation being struck down on account of insufficient consultation with Aboriginal Peoples.

For further information, please contact:

Sandy Carpenter            403-260-9768
Nicole Bakker                 403-260-9645
Roy Millen                      604-631-4220

or any other member of our Aboriginal Law group.

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