Supreme Court of Canada Rules Duty to Consult Does Not Apply to the Law-Making Process
October 15, 2018
The Supreme Court of Canada (SCC) determined that Ministers of the Crown have no duty to consult Aboriginal Peoples in the development of legislation, in its October 11, 2018 decision in Mikisew Cree First Nation v. Canada (Governor General in Council) (Mikisew). However, the majority of the SCC held that declaratory relief could be available where aboriginal or treaty rights are adversely affected by legislation that disregards the Crown’s obligation to deal honourably with Aboriginal Peoples. The result leaves some residual uncertainty as to the extent of governments’ legislative discretion, in the continuing attempt to reconcile Crown sovereignty with aboriginal rights in Canada.
The previous federal government introduced two pieces of omnibus legislation in April 2012 that significantly changed Canada’s environmental protection regime. The government did not consult the Mikisew Cree First Nation (Mikisew) on either bill. The Mikisew brought an application for judicial review to the Federal Court of Canada (Court) and argued that the Crown had a duty to consult them when developing the legislation, as it had the potential to affect their treaty rights.
The Court ruled that the duty to consult was triggered and that the Mikisew were entitled to notice of the new legislation and an opportunity to make submissions. On appeal, the Federal Court of Appeal overturned the lower court’s decision, concluding that Ministers developing policy do so in a legislative capacity, and such actions are immune from judicial review. The Mikisew appealed to the SCC.
All nine judges of the SCC unanimously concluded that they must dismiss the appeal because the Court lacked jurisdiction to consider the Mikisew’s application for judicial review. The Court has jurisdiction where relief is claimed against the Crown; however, this jurisdiction does not extend to Ministers exercising legislative power.
There were four separate concurring judgments, in which the nine judges took differing views on Crown duties to Aboriginal Peoples during the legislative process.
Majority Finds No Duty to Consult, but Leaves Door Open to Declaratory Relief
The majority (seven judges) of the SCC agreed that the duty to consult is not triggered by the legislative process. The duty to consult is “ill-suited for legislative action”. Parliamentary sovereignty and the separation of powers preclude the courts from supervising the development of legislation.
A smaller majority (five judges) of the SCC left open the possibility that other protections may be recognized in future cases when aboriginal or treaty rights may be “adversely affected” by legislation, without specifically confirming the existence or scope of such an action.
A minority (four judges) of the SCC were critical of this possibility, referring to the importance of parliamentary privilege, the limited scope of judicial review, and the need to respect the separation of powers between the judicial, executive and legislative branches of government. They concluded that the uncertainty resulting from the prospect of a yet-to-be-defined potential basis for declaratory relief (as described by the majority) “would have deleterious effects on Indigenous peoples, and indeed on all who rely upon the efficacy of validly enacted and constitutionally compliant laws”.
Minority Finds a Duty to Consult
Two judges concluded that although the appeal should be dismissed due to the Court’s lack of jurisdiction, the enactment of legislation should give rise to a duty to consult. They reasoned that the duty to consult should be triggered where the Crown, with knowledge of potential aboriginal rights or title, considers legislation that may adversely affect those rights.
This line of reasoning was not ultimately successful, but it is indicative of the divergence of views among the nine judges of the SCC.
The federal government is undertaking a review of its environmental assessment and other laws that were the subject of the Mikisew case. As part of that review, the government has undertaken consultation with Aboriginal Peoples and others. It remains to be seen in future cases whether courts are prepared to grant declaratory relief regarding legislation that adversely affects aboriginal or treaty rights. Unfortunately, the SCC has offered little guidance on what circumstances might justify such relief, resulting in uncertainty and the prospects of future litigation to address such questions.
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