Case Brief: Mikisew Cree First Nation v. Canada (Governor in Council), 2018 SCC 40
In a considerably divided 7-2 majority, the Supreme Court of Canada ruled that the duty to consult Indigenous peoples does not apply to the law-making process.
Mikisew Cree Nation had sought judicial review on the issue of whether Parliament was required by the honour of the Crown to consult with Indigenous peoples on legislation that may affect section 35 Aboriginal and Treaty rights. The Supreme Court unanimously dismissed the appeal on jurisdictional grounds. However, four sets of reasons form the Court’s decision, three of which came separately to the conclusion that the duty to consult does not extend to legislative action. The fourth set, written by Justice Abella with Justice Martin concurring, dissented on this point.
Background
Mikisew Cree First Nation is a signatory of Treaty No. 8, which provides for the protection of their right to hunt, trap and fish in treaty territory. Mikisew brought an application for judicial review in response to two omnibus budget bills, introduced by the Harper government in 2012, without any consultation with Indigenous peoples, which significantly altered Canada’s environmental protection regime.
Mikisew sought a declaration regarding the Crown’s duty to consult them when developing legislation that had the potential to adversely impact their constitutionally-protected rights.
The Federal Court granted the application in part and declared the Crown owed and breached its duty to consult Mikisew in the development and introduction of the two omnibus bills. The duty consisted of a requirement to give notice and to provide a reasonable opportunity to make submissions to Parliament. The Federal Court of Appeal set aside the decision, finding that legislative action is not a proper subject for an application of judicial review under the Federal Courts Act and that extending the duty to consult to the legislative process would offend the separation of powers and parliamentary sovereignty. Mikisew appealed to the Supreme Court.
Analysis
What is clear is that the law-making process – meaning the development, passage and enactment of legislation – will not trigger a duty to consult. A majority of the Court agreed that “Crown conduct” capable of triggering the duty does not include actions of ministers developing legislation, because such actions are taken in a legislative capacity. However, Crown actions taken pursuant to such legislation, e.g. issuing a permit, are still subject to the duty to consult.
The overarching rationale given by the Court for why legislative actions cannot trigger a duty to consult is that it would constitute an unlawful incursion of the courts into the law-making process, thereby contravening the constitutional principles of the separation of powers and parliamentary sovereignty. In addition, the judges in the majority were all concerned that legal and legislative chaos would ensue if the duty to consult were grafted onto the law-making process.
On the issue of the extent to which the honour of the Crown binds Parliament, all sets of reasons are in heated disagreement. Justice Karakatsanis distinguishes the duty to consult as being one mechanism among others – left to be determined by future litigation presumably – whereby the honour of the Crown can be upheld. Thus, she leaves open the possibility that others avenues may be available to enforce honourable dealing in the legislative sphere. Justice Brown vehemently rejects this suggestion and both he and Justice Rowe conclude the honour of the Crown does not bind Parliament. Justice Abella, on the other hand, insists the honour of the Crown applies to all government dealings with Indigenous peoples regardless of the formal label applied to Crown conduct.
Why This Case Matters
In previous decisions the Supreme Court left open the possibility that the duty to consult might apply to legislative action (Carrier Sekani, paragraph 44; Clyde River, paragraph 28). It has now answered that question: the duty to consult does not extend to the law-making process.
The Court was nevertheless unanimous in encouraging the Crown to consult Indigenous groups, as a matter of policy, when developing legislation that may adversely affect their rights. Each set of reasons emphasizes that legislation that infringes section 35 Aboriginal and Treaty rights may still be challenged and declared invalid, as per the Sparrow test. A relevant consideration in determining whether or not such infringement is justified is whether the government consulted with the affected Indigenous group. In the end, the failure of government to consult on legislation that could adversely affect Indigenous rights continues to be a risky move. First Nations who object to draft legislation should at the earliest outset make their objections known and articulate how such legislation adversely affects or infringes on their rights.