Canada: SCC To Consider The Crown's Duty To Consult In The Legislative Process; Will Hear Appeal Of Courtoreille v. Canada, 2016 FCA 311

Last Updated: January 15 2018
Article by Canadian ERA Perspectives, Bryn Gray and Stephanie Axmann

Most Read Contributor in Canada, September 2018

This coming Monday, January 15th, the Supreme Court of Canada (SCC) will hear the appeal of the Mikisew Cree First Nation from the Federal Court of Appeal's (FCA's) decision in Courtoreille v. Canada, a significant duty to consult case which we wrote about in 2017.

Courtoreille concerns the Mikisew Cree's challenge to the previous federal government's introduction in 2012 of omnibus legislation amending Canada's environmental assessment regime under CEAA 2012, as well as related environmental and regulatory approval legislation including the Fisheries Act, Species at Risk Act, and the Navigable Waters Protection Act (now Navigation Protection Act). The Mikisew Cree were not consulted on the amendments. They argued that the changes to such legislation could negatively impact their treaty rights to hunt, fish and trap, thereby triggering the duty to consult in respect of such legislation before it was passed into law.

In the FCA's decision, the Court concluded that the entire legislative process – from the discussion of policy options to the passage of legislation – does not trigger the duty to consult. The SCC will have the opportunity to finally address the lingering questions of whether and to what extent the Crown is subject to a justiciable duty to consult Aboriginal peoples in respect of proposed legislation that may affect Aboriginal and treaty rights – questions which it expressly left "to another day" in Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43.

Brandon Kain and Bryn Gray of McCarthy Tétrault are representing an Intervener, Advocates For the Rule of Law, in the appeal before the SCC.

Lower Court Decisions

At first instance, the Federal Court granted declaratory relief in favour of the Mikisew Cree. It held that the duty to consult was triggered, but interpreted the duty narrowly. It held that the duty to consult arose only after the bills were introduced into Parliament, due to the separation of powers and the principle of parliamentary sovereignty. Further, it held that any such duty was limited to providing notice and a reasonable opportunity to make submissions.

The Federal Court of Appeal set aside the declaration of the lower court, finding that it did not have jurisdiction to impose a duty to consult in the legislative process. It held that courts should not supervise the legislative process or provide relief until a bill has been enacted. In addition, the Court held that the imposition of a duty to consult in the legislative process would unduly interfere with Parliament's processes and fetter its law-making capacity. The Federal Court of Appeal noted, however, that its decision did not prevent governments from consulting with Aboriginal groups on proposed legislation as a matter of public policy.

In a concurring minority judgment, the Court reasoned that legislation of general application (like CEAA 2012), having effects that are not specific to particular Aboriginal peoples or their territories, does not trigger the duty to consult, but suggested that legislation pertaining to a specific project or undertaking might trigger the duty if Aboriginal rights and interests were more directly affected.

Issues on Appeal

In determining whether there is a justiciable duty to consult during the legislative process, the appeal decision should address the separation of powers between the executive, legislative branch, and the judiciary; specifically, whether courts have the power to judicially review and impose a duty to consult at any point in the law-making process or whether courts are precluded from doing so because of the separation of powers and Parliamentary sovereignty. It may also address the notion put forth in the Federal Court of Appeal's minority decision of whether the duty to consult might arise in respect of legislation that directly affects First Nations, but not in respect of legislation of general application.

If the SCC finds that the duty to consult can arise in particular circumstances, the further question will be at what stage in the legislative process might it arise (for example, whether on introduction into Parliament), and what would constitute sufficient consultation, and where appropriate, accommodation. It would also raise questions about remedies that may be available in the event of deficient consultation or accommodation and how such remedies can be reconciled with the Court's jurisprudence on the separation of powers and Parliamentary sovereignty.

The issues to be decided in this case are particularly timely in the context of the federal government's current task of reviewing the previously amended environmental and regulatory legislation at issue in this litigation. This case is also of particular relevance considering that the federal government also recently announced its commitment to undertake a review of all federal laws and policies that affect Indigenous peoples' rights, to ensure the government is meeting its constitutional obligations to Indigenous peoples. The federal government has committed to consulting with Indigenous groups in respect of these legislative review processes as a matter of policy and as part of its commitment to a renewed nation-to-nation relationship with Indigenous peoples. The question that Courtoreille will help to answer is whether, and to what extent, there is a legal obligation for the government to do so and whether, and to what extent, the courts will supervise this process.

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