Canada: Duty To Consult Not Triggered By Law-Making Process, But Uncertainty Remains

Background

In 2012, the former conservative government introduced two broad omnibus bills that changed the Canadian Environmental Assessment Act and other environmental statutes.¹ The changes were of general application, and clearly affected the traditional territory of Mikisew Cree First Nation ("Mikisew"). Mikisew Chief Steve Courtoreille applied to the Federal Court seeking a declaration that the federal government owed the Mikisew a duty to consult before the omnibus bills were presented to Parliament.

In 2014, the Federal Court ruled that the duty to consult had been triggered by the introduction of the bills, and Mikisew were entitled to notice and a reasonable opportunity to make submissions when the bills were submitted to Parliament.

In 2016, the Federal Court of Appeal disagreed, finding that the duty to consult was not triggered during the development of draft legislation. The majority found that the Federal Court could not review government actions that took place before the bills were introduced into Parliament. The majority also held that the Court could not impose constraints on the process of developing legislation without offending Parliament's law-making power.

Supreme Court of Canada Decision: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

While the Supreme Court issued four separate concurring judgments, all nine Justices unanimously found that the Federal Court lacked the jurisdiction to consider the application for judicial review. The Supreme Court observed that the Federal Court is a statutory court, and there is no foothold in the Federal Courts Act that would allow the Court to review Parliament's law-making process.

That alone was sufficient to decide Mikisew's appeal, but the Supreme Court also addressed whether Parliament's law-making process was capable of triggering a duty to consult.

On this issue, the Court held that the duty to consult was not triggered in the preparation of the omnibus legislation - or any aspect of Parliament's law-making function. Rather, the law-making process is part of Parliament's sovereign power over which the Court has no ability to intervene.

In three different sets of reasons, the majority of the Justices found the duty to consult is restricted to executive actions, including Ministerial decision-making and regulation. The Justices in the majority were satisfied that other remedies existed to protect Aboriginal and Treaty rights without interfering with Parliament's role. Legislation can be challenged on the basis it unjustifiably infringes Aboriginal and Treaty rights, as set out R. v. Sparrow and confirmed in Tsilhqot'in, and executive actions can be challenged based on the law set out in Haida Nation imposing a duty to consult.

Two Justices would have extended the duty to consult to cover legislative actions. Grounded in the honour of the Crown, and with the aim of advancing reconciliation, these two Justices were of the view that duty to consult must apply to all exercises of government authority, including law-making. Accordingly, in their view, enacting legislation such as the omnibus bills, with the potential to adversely affect Aboriginal and Treaty rights, would give rise to a duty to consult.

All the Justices also commented that it is good public policy to consult in advance of passing legislation.

Remaining Uncertainty

An area of disagreement remains after this decision: three Justices of the Supreme Court (in the reasons written by Karakatsanis J.) found that "the honour of the Crown may well require judicial intervention where legislation may adversely affect - but does not necessarily infringe - Aboriginal or Treaty rights" but that this question "must be left to another day". It is unclear in what situations this could arise, or on what grounds the legislation could be challenged. Indeed, Brown J. and Rowe J. (collectively writing for four Justices) critique this approach largely on the basis of the uncertainty it introduces for governments when implementing legislation, for industry relying on legislation, and for Indigenous peoples themselves.

Footnote

[1] Together, the bills repealed the Canadian Environmental Assessment Act, enacted the Canadian Environmental Assessment Act 2012, narrowed the application of the former Navigable Waters Protection Act, and changed the habitat protection provisions of the Fisheries Act.

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.