On October 11, 2018, the Supreme Court of Canada handed down a 7-2 decision, ruling that Canada's federal lawmakers do not have a duty to consult with Indigenous peoples before tabling legislation in Parliament that may affect Aboriginal and treaty rights. The case was brought before Canada's highest court by Alberta's Mikisew Cree First Nation ("MCFN") and stems from the First Nation not being consulted with respect to two pieces of omnibus legislation that were introduced into Parliament by the Harper government in the spring of 2012, which had significant effects on Canada's environmental protection regime. We first wrote about this appeal here.

Earlier Decisions

The MCFN applied to the Federal Court for judicial review, arguing that the Crown had a duty to consult with it on the development of that legislation, since it had the potential to adversely affect their treaty rights to hunt, fish and trap. In an unprecedented ruling, the reviewing judge found that the Crown's duty to consult was triggered. However, on appeal to the Federal Court of Appeal, it was found that judicial review of legislative action is inconsistent with the constitutional principles of parliamentary sovereignty, separation of powers and parliamentary privilege. The MCFN appealed to the highest court in Canada, seeking a definitive answer with respect to whether there is, in fact, a duty for the Crown to consult Indigenous peoples during the law-making process. Ultimately, on the basis of constitutional law principles, the majority of the Supreme Court dismissed the MCFN's case.

The Supreme Court of Canada's Ruling

The Supreme Court's rejection of extending the duty to consult to the development, passage and enactment of legislation is premised on two points. The first is that the separation of powers doctrine in Canada requires that the law-making process, which is an exercise of legislative power, must remain separate from judicial scrutiny and interference. Secondly, the doctrines of parliamentary sovereignty and parliamentary privilege protect the legislature's ability to "make or unmake any law it wishes, within the confines of its constitutional authority." Parliamentary privilege also acts to prevent courts from enforcing procedural constraints on the parliamentary process. Therefore, the Court reasoned that applying the duty to consult to the law-making process would inappropriately lead to significant judicial incursion into the workings of the legislature. The Court held that to find a duty to consult at the legislative drafting stage would "encroach on parliamentary privi! lege", "i nvolve the courts in supervising matters that they have always held back from doing" and "would offend foundational constitutional principles and create rather than solve problems".

What the Case Means

This decision provides a clear answer to the, until now, unresolved question of whether the honour of the Crown extends to the legislative process. It is also notable because, despite this being a 7-2 ruling, there were four different lines of reasoning written by the judges in support of their opinions. While the Supreme Court has provided a definitive answer with respect to the scope of the duty to consult, the debate and divergence of reasoning within Canada's highest court, fuelled by a consideration of the constitutional principles of parliamentary sovereignty and the Crown's obligation to deal fairly with Indigenous peoples, demonstrates that there is still some uncertainty with respect to the scope of the honour of the Crown. Time will tell if Indigenous groups decide to seize the opportunity to challenge, or rely on, the differing reasoning set out by the Supreme Court, to continue to press for, and possibly, broaden the boundaries of the Crown's duty to consult.

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