Canada: Federal Court Confirms Limitations On Consultation During Legislative Process

In Courtoreille v. Canada (Decision), Chief Steve Courtoreille, on behalf of himself and the members of the Mikisew Cree First Nation (Mikisew), sought a declaration that the federal government has a duty to consult regarding the development and introduction of legislation that has the potential to affect Mikisew's treaty rights. In the Decision, the Federal Court (Court) confirmed that the Crown's duty to consult during the legislative process is limited to providing notice to the Mikisew of the proposed legislation's potential impacts to the Mikisew's treaty rights. For future bills which could potentially impact the Mikisew's treaty rights, notice should be provided upon introduction to Parliament and the Mikisew should be given a reasonable opportunity to make submissions. The Decision affirms the long-established separation of powers principle between the executive, legislative and judicial branches in the law-making context.

Brief Facts

The Mikisew has historically occupied and harvested lands located within the Peace-Athabasca Delta and Lower Athabasca River regions, which today form part of northeastern Alberta and neighbouring areas. The region contains a number of rivers and lakes that have provided the Mikisew with abundant fishing, trapping and navigation. In 1899, the Mikisew and other First Nations entered into Treaty No. 8 and ceded certain lands in exchange for certain guarantees from the Crown. The Treaty No. 8 guarantees included the Mikisew's right to pursue "their usual vocations of hunting, trapping and fishing throughout the tract surrendered."

In 2012 the federal government made significant changes to Canada's environmental legislation through introduction of Omnibus Bills C-38 and C-45 (Bills). The Mikisew argued that the proposals contained in the Bills would reduce the federal monitoring in many of their waterways within their tract of Treaty No. 8 lands, and that this reduction would have the potential of losing the ability to monitor those waterways.

The Mikisew were not consulted prior to the introduction of the Bills in Parliament, nor during the process in Parliament resulting in the Bills receiving royal assent. Chief Courtoreille sought a declaration that the federal government had a duty to consult with the Mikisew during the legislative process that led to the passing of the Bills into law.

The Decision

The Court first considered the point at which it may order intervention in the law-making process. It concluded that existing Supreme Court of Canada (SCC) jurisprudence supports the proposition that Courts will not intervene to dictate a particular regulatory scheme for Parliament to impose upon the Crown. Based on this jurisprudence, the Court held that Parliament is best placed to make the policy choice for creating the procedure for which the Crown administers in discharging the duty to consult.

In the present case, the Ministers made a set of policy choices that led to the creation of a legislative proposal to be submitted to Cabinet, which resulted in the formulation and introduction of the Bills into Parliament. In doing so, they acted in their legislative capacity to make decisions that were legislative in nature. The practical effect of the Court's intervention after finding a duty to consult exists in the law-making process would place procedural constraints upon Parliament, thus compromising the sovereignty of Parliament. This would have the effect of constraining a process for which the government requires flexibility to carry out its duties. The Court concluded that if the Crown had a duty to consult Mikisew, judicial intervention could not be triggered before the Bills were introduced into Parliament.

The Court went on to consider whether there was a duty to consult and whether, based on the facts, the duty to consult was triggered. The Crown conceded that it has knowledge of the Mikisew's rights under Treaty No. 8. Since the Treaty was signed in 1899, development has affected the usual vocations of the Mikisew. Monitoring the waterways has been beneficial in processes intended to protect the environment and preserve the usual vocations pursued by the Mikisew. Citing the SCC decision in Haida Nation v. B.C. (Ministry of Forests), the Court found the evidence demonstrated a sufficient potential risk to the fishing and trapping rights so as to trigger the duty to consult. Regarding the extent of the duty to consult, the Court acknowledged that certain aspects of the Bills clearly address waterways that are within the Mikisew Treaty No. 8 territory. For provisions that had the potential to impact upon the Mikisew's usual vocations, notice should have been given to the Mikisew upon the introduction of each of the Bills into Parliament, together with a reasonable opportunity for the Mikisew to make submissions.

Based on the fact that the Bills have now passed into the law, the Court concluded that a declaration that the parties must now consult would be pointless. The Court denied what amounted to a request for injunctive relief regarding environmental assessment on the basis that it would be impossible to define the scope of such an order, which would also unduly fetter the workings of government. However, the Court noted that a declaration to the effect that the Crown ought to have given the Mikisew notice at the time the Bills were introduced, along with a reasonable opportunity to make submissions, may have an effect on the future continuing obligations to the Mikisew under Treaty No. 8. 

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