Canada: Is There A Duty To Consult On Legislation? SCC May Decide

This week the SCC received an application to hear an appeal of the Federal Court of Appeal ("FCA") decision in Canada (Governor General In Council) v Courtoreille1 ("Courtoreille"). The FCA allowed the appeal from the lower court decision and held that the Crown does not have a duty to consult when "contemplating changes to legislation that may adversely impact treaty rights."2 This decision engages well established democratic principles, Constitutional rights, the development of Aboriginal Law and the duty to consult.


In 2012, the federal government introduced two omnibus bills, Bills C-38 and C-45 (the "Omnibus Bills"). The Omnibus Bills amended several federal environmental laws, including the Fisheries Act,3 Species at Risk Act,4 Canadian Environmental Protection Act, 19995 and former Navigable Waters Protection Act (now the Navigation Protection Act).6 The Omnibus Bills also repealed and replaced the Canadian Environmental Assessment Act.7 The purpose of these changes was to streamline the permitting process for many projects.

Chief Courtoreille and the Mikisew Cree First Nation ("Mikisew Cree"), signatories to Treaty 8, brought an application for judicial review, alleging that the Omnibus Bills "reduced federal regulatory oversight on works and projects that might affect their treaty rights to hunt, fish and trap."8 The Mikisew Cree argued that they should have been consulted during the development of the Omnibus Bills.

The Mikisew Cree's argument raises an important issue for Aboriginal law that has yet to be considered by the Supreme Court of Canada. In Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, the Supreme Court noted that the duty to consult attaches to strategic, higher level decisions.9 Examples of strategic decisions giving rise to the duty to consult include forest stewardship plans, municipal land use plans, and regional water management plans. The case leaves open the question of whether, and to what extent, legislative action or reform triggers the duty to consult.10

Mikisew Cree were successful in the first decision. The Federal Court found that the federal government had a duty to consult the Mikisew Cree for certain amendments to the Navigation Protection Act and Fisheries Act which had the potential to adversely impact fishing and trapping rights. This duty was triggered when the Omnibus Bills were introduced to Parliament, and included a duty to give notice and a reasonable opportunity to make submissions. However, the Federal Court also found that the duty did not include a duty to accommodate since the provisions had yet to be applied to any specific situations.

Decision on Appeal

The FCA overturned the Federal Court's decision. Writing for the majority, Justices De Montigny and Webb noted that legislative action is "not a proper subject" for judicial review and that imposing the duty to consult on the legislative process "offends the separation of powers doctrine and principle of parliamentary privilege."11

The majority found that the well-established parliamentary sovereignty and separation of powers doctrines justified the Court's refusal to impose a duty to consult during the legislative process. It determined that courts should not meddle with the legislative process, and would only intervene "after legislation is enacted and not before."12 The FCA went on to raise the following concerns:

Imposing a duty to consult at any stage of the process, as a legal requirement, would not only be impractical and cumbersome... but would fetter ministers and other members of Parliament in their law-making capacity.13

The majority further noted that a statute is still open to constitutional challenge, and went as far as to advise that consultation before the adoption of an impugned statute would be key in "determining whether the infringement of an Aboriginal or treaty right is justified."14 The FCA did not provide further detail about when such consultation should take place.

In Justice Pelletier's concurring reasons, he allowed the appeal on the basis that the Omnibus Bill amendments were of general application, and the duty to consult is not triggered by legislation of general application across Canada affecting all of its occupants. Pelletier, J. left the door open for the duty to consult to be triggered by legislation whose effects are "specific" to particular Indigenous peoples, or to specific territories in which they have in interest.15

Significance of the Decision

The Mikisew Cree challenge appears already to be affecting the development of legislation. The federal government is currently engaging Indigenous people about the same environmental legislation impacted by the Omnibus Bills through: (i) hearings before panels of experts in numerous cities across the country: (ii) parliamentary committee hearings; and (iii) funding Indigenous communities and First Nations to participate in the hearings through oral and written comments.

This is consistent with the majority's statement that "it is good politics to engage... Aboriginal groups on legislative initiatives which may affect them or regarding which they have a keen interest before introducing legislative initiatives into Parliament."16 However, the majority acknowledged that these forums may not be sufficient to meet the obligations arising from the duty to consult.

The majority also noted that the application of legislation is open to constitutional challenges if used to justify a decision that would "impede or prevent the enjoyment" of Indigenous rights.17 However, these avenues of recourse are costly, "after the fact" and are reactive, rather than proactive.

This case raises important issues for democracy and Aboriginal law. If the Supreme Court chooses to hear the appeal, how will the Supreme Court draw the balance between allowing the legislature to draft without interference from the judiciary, while meeting the Aboriginal law principles of the honour of the Crown, duty to consult and reconciliation? Is the government constitutionally required to consult with Indigenous people before introducing legislation? Is the duty triggered at some other point before Royal Proclamation? Is the duty engaged by legislation with specific effects or more general legislation? How "specific" do the effects need to be? And what is the scope of meaningful consultation on legislation?

These are all vital questions, and Willms & Shier will provide updates as the law develops.


1. 2016 FCA 311 [Courtoreille].

2. Ibid at para 2.

3. RSC 1985, c F-14.

4. SC 2002, c 29

5. SC 1999, c 33.

6. RSC 1985, c N-22.

7. SC 1992, c 37; SC 2012, c 19, s 52.

8. Courtoreille at para 1.

9. 2010 SCC 43.

10. Courtoreille at para 47.

11. Ibid at para 3.

12. Ibid at paras 52 and 53.

13. Ibid at paras 59 and 60.

14. Ibid at paras 51 and 63.

15. Ibid at paras 84 and 91.

16. Ibid at para 61 and 62.

17. Ibid at para 51.

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

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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 (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

To Use 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.


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.


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