Canada: Divided Supreme Court Dishes Delphic Decisions While Dissing Consultation On Legislation: Mikisew Cree First Nation v. Canada

In 2012 the then Government of Canada's Omnibus budget legislation included significant amendments to the environmental assessments and approval provisions of both the Canadian Environmental Assessment Act and the Fisheries Act. This was a matter of concern to the Mikisew Cree, who took the view that the Government ought to have first consulted with Indigenous peoples who, and whose aboriginal rights, might be affected by the legislative changes. They said that this was necessary because the laws involved the environmental assessment of projects that might have adverse impacts upon the rights of the Mikisew Cree, including the rights to hunt fish and trap under Treaty No. 8. The federal government took the position that the development of government policy and its implementation as law is an exercise of government's legislative power, which has been consistently held to be immune from judicial review.

All nine judges of the Supreme Court of Canada agreed with the Federal Court of Appeal that the Federal Courts Act does not grant the Federal Court the jurisdiction to review the actions of federal ministers in the parliamentary process. Were that the end of the story, this would be a very short article indeed. However, the development of the common law related to Indigenous peoples in Canada, like life in general, is not that simple. Instead, the various Justices of the Supreme Court issued four separate sets of concurring reasons, each different. The entrails having been cast by the Court, we are left to divine its intentions and their impact on how government can legislate in areas that may affect Indigenous peoples, both in accordance with the honour of the Crown and in compliance with government's consultation obligations under section 35 of the Constitution Act, 1982.

In this game of numbers, the judgment of Justice Brown was concurred in by three other Justices – Rowe J., Moldaver J., and Côté. All agreed "... that the entire law-making process – from initial policy development to and including royal assent – is an exercise of legislative power which is immune from judicial interference." That analysis leaves no room for the courts to impose a duty of consultation with affected Indigenous peoples in the course of the law-making process. Justice Brown wrote that when a Minister of the Crown acts to present a set of policy decisions which leads to the drafting of a legislative proposal submitted to Cabinet and then the formulation and introduction of legislation in Parliament (or the Legislature), those actions are taken in a legislative capacity. By reason of the separation of the judicial, executive, and legislative powers in the Canadian Constitution, it is not open for the courts to interfere with the exercise of those legislative powers. By this reasoning, the protection of the rights of Indigenous peoples under the Canadian Constitution does not mandate consultation prior to the enactment of new legislation. Although executive actions by the officers of the Crown (such as issuing approvals) are subject to prior consultation in circumstances in which consultation is warranted, the enactment of legislation is not.

Justice Brown and the three judges that agreed with him were highly critical of the cryptic comments contained in the concurring reasons of the other Justices. He wrote that "... an apex court should not strive to sew uncertainty, but rather to resolve it by, wherever possible (as here), stating clearly the rules."

Justice Rowe added three points to Justice Brown's analysis:

  • Indigenous peoples are protected by Section 35 of the Constitution Act, 1982, which allows laws to be challenged after being enacted;
  • requiring prior consultation with Indigenous peoples in the process of preparing legislation, including budget bills, would disrupt the parliamentary process; and
  • accepting the Mikisew Cree's position would result in courts having to take an interventionist role in supervising the development of legislation.

In her reasons, Justice Karakatsanis (concurred in by Wagner C. J. and Gascon J.) undertook an analysis of the concept of the "honour of the Crown", the foundation of the duty to consult, which goes back to the Royal Proclamation of 1763. She wrote that the purpose of the concept is the reconciliation of the Crown's assertion of sovereignty over Indigenous peoples and pre-existing sovereignty, rights and occupation of those peoples. In her analysis the duty to consult forms one of the Crown's obligations and ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine aboriginal and treaty rights. It promotes negotiation and settlement as an alternative to litigation. She did conclude that "... the law-making process – that is, development, passage and enactment of legislation – does not trigger the duty to consult." That applies to the development of legislation as well as its enactment. In response to the Mikisew Cree's assertion that legislation can only be challenged on the basis of actual infringement of section 35 rights, she stated, "Other doctrines may be developed to ensure the consistent protection of section 35 rights and to give full effect to the honour of the Crown through review of enacted legislation." She concluded, "While an aboriginal group will not be able to challenge legislation on the basis that the duty to consult was not fulfilled, other protections may well be recognized in future cases."

Justice Abella (concurred in by Martin J.) wrote that the obligation of honour of the Crown does give rise to the duty to consult and accommodate in relation to all contemplated government conduct that has the potential to adversely impact assertive or established aboriginal or treaty rights, including legislative action. In her view, this arises out of the Crown's overarching responsibility to act honourably in all its dealings with Indigenous peoples, which duty cannot be undermined or extinguished by concepts of parliamentary sovereignty.

For those of you keeping the box score: all nine judges agreed that the Federal Court did not have the jurisdiction to review Parliament's legislative actions; seven judges agreed that legislative action did not give rise to a duty of prior consultation; and three judges said that, down the road, the court might find other ways to grant remedies to protect the rights of Indigenous peoples in the law-making process.

Populating a spreadsheet with checkmarks, notes and cross-references in order to be able to advise clients on the current state of the law and the future direction of its development, as expounded by, and, as is often the case, expanded by, the Supreme Court, is a less than satisfying exercise. It may well be some time and much litigation before the elements of the various decisions coalesce into guiding stars that will allow resource developers, Indigenous peoples, and governments to safely and predictably navigate into the future.

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
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
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 (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