Canada: 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
23 Nov 2018, Other, Toronto, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

28 Nov 2018, Speaking Engagement, Toronto, Canada

Arbitration has a number of advantages and some disadvantages for the resolution of domestic and international commercial disputes.

Similar Articles
Relevancy Powered by MondaqAI
Willms & Shier Environmental Lawyers LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Willms & Shier Environmental Lawyers LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions