The Supreme Court of Canada (SCC, or the Court) has ruled that there is no duty to consult Indigenous groups at any stage of the law-making process.1 This is an important ruling as the recognition of a justiciable duty to consult in the legislative process would have had very significant implications for the ability of federal, provincial, and territorial governments to pass laws in a timely way. However, this finding does not mean that legislation is immune from judicial challenge by Indigenous groups. Laws can still be struck down once enacted if they infringe established Aboriginal or treaty rights or Charter rights. The SCC's split ruling with four different judgments also creates uncertainty about whether legislation can be challenged once enacted on additional grounds, specifically a breach of the honour of the Crown. While this suggestion was raised in a minority concurring decision, it will likely lead to further litigation on this point.
Background on the Decision
This appeal arose from a judicial review by the Mikisew Cree First Nation relating to the former Conservative government's introduction of omnibus legislation amending several Canadian environmental and regulatory laws in 2012. The Mikisew Cree were not consulted on the amendments. While the Crown's duty to consult has to date been limited to executive action, the appellant argued that the duty to consult was triggered because the Ministers were acting in an executive (rather than legislative) capacity in developing and introducing legislation and the amendments reduced federal regulatory oversight on projects that may affect their treaty rights to hunt, fish, and trap. They sought various declarations that the respondent Ministers had a duty to consult them regarding the development and introduction of the omnibus bills.
At first instance, the Federal Court held that the duty to consult was triggered, but that it only arose after the bills were introduced into Parliament, due to the separation of powers and the principle of parliamentary sovereignty. The Federal Court of Appeal set aside that decision, finding that the Federal Court did not have jurisdiction to supervise or impose a duty to consult in the legislative process and that such duty would unduly interfere with Parliament's processes and fetter its law-making capacity, contrary to parliamentary sovereignty.
No Duty to Consult in the Legislative Process
While there were four different judgements, the SCC was unanimous in dismissing the Mikisew Cree's appeal. All nine judges agreed that the Federal Court lacked jurisdiction over the Mikisew Cree's claim because the Federal Courts Act does not allow for judicial review of parliamentary activities and actions of Ministers in the parliamentary process. The Court, however, split (7-2) on whether legislation could be challenged, once enacted, for a failure to consult Indigenous groups.
The majority of the judges in three separate concurring decisions (by Karakatsanis, Brown, and Rowe JJ.) ruled that there could be no duty to consult at any stage of the legislative process, including Royal Assent. In other words, even once enacted, legislation cannot not be challenged on the basis of a failure to consult Indigenous groups whose Aboriginal or treaty rights may be adversely affected by the legislation. While they each provided separate reasons, the three judges found that recognizing a duty to consult at any stage in the legislative process would be contrary to parliamentary sovereignty, parliamentary privilege, and/or the separation of powers which protect the law-making process from judicial oversight.
The judges in the majority also acknowledged numerous practical concerns that would arise if a duty to consult were imposed upon the legislative process. Justice Rowe (Moldaver and Côté JJ, concurring) stated that imposing a duty to consult in the legislative process would be "highly disruptive" to the legislative process and "could effectively grind the day-to-day internal operation of government to a halt" given the low threshold to trigger the duty to consult and the number of Indigenous groups that would need to be consulted.
All three judgements noted the availability of other existing remedies available to Indigenous groups if enacted legislation is found to infringe established Aboriginal or treaty rights – such legislation may be declared invalid. The reasons of Justice Karakatsanis may also open the door to other potential remedies, as further discussed below.
Notably, the opinions of the majority do not suggest that governments should not consult Indigenous groups on legislation. They stated that they were simply determining whether the courts are able to intervene to determine whether consultation was adequate.
In a minority decision, Justice Abella (Martin J. concurring) held that the enactment of legislation that has the potential to adversely affect asserted or established Aboriginal or treaty rights would give rise to the duty to consult and that legislation enacted in breach of that duty could be judicially challenged. Justice Abella held that it would make little analytical sense to take a different approach to legislation than to executive conduct given that the Honour of the Crown applies to all of the government's dealings with Indigenous groups. She noted that this could allow the Crown to evade consultation through legislation and that it would leave Indigenous groups without a remedy if there were adverse effects on their Aboriginal or treaty rights that did not give rise to an infringement. Notably, an action for infringement only arises in the case of established rights (either previously established or in the course of an infringement proceeding) and requires a "meaningful diminution of the right", which is a higher threshold than an "impact" except in the case of established Aboriginal title.
Minority Opens Door to Other Litigation
While ruling out a duty to consult at any stage of the legislative process, Justice Karakatsanis (Wagner C.J. and Gascon J. concurring) held that the honour of the Crown may require "judicial intervention where legislation may adversely affect – but does not necessarily infringe – Aboriginal or treaty rights". Her reasons largely leave the resolution of this question to another day but notes that it may give rise to other remedies such as declaratory relief. She provides two examples where this may arise: (i) where the Crown attempts to effectively legislate around a duty to consult that would otherwise arise (i.e. legislate a project approval); and (ii) where the Crown legislates in a way that effectively removes future Crown conduct that would otherwise trigger the duty to consult. The latter example is effectively what the Mikisew Cree alleged the federal government did in this case and it appears by the example cited by Justice Karakatsanis that she was actually referring to legislation that does not allow for consultation of executive conduct that would otherwise trigger the duty to consult – not eliminating or reducing executive decision-making that would trigger the duty to consult.
It is anticipated that Indigenous groups will use this obiter in future cases and argue that Justice Karakatsanis, Wagner C.J., and Gascon J. were in the majority on this point. This is in fact a minority opinion as four judges disagreed on this specific issue (Brown, Rowe, Moldaver, and Côté JJ) and the two dissenting judges did not weigh in as they were focused solely on the existence of a duty to consult, not another remedy (Abella and Martin JJ.). Justice Brown wrote a strong response to Justice Karakatsanis on this specific issue, with which Justices Rowe, Moldaver and Côté concurred. In his reasons, Justice Brown states:
"....By raising (and then leaving undecided) this quixotic argument about the honour of the Crown — which neither the appellant nor any of the intervenors even thought to raise — my colleague Karakatsanis J. would cast the law into considerable uncertainty. It is worth reflecting upon just who would bear the brunt of this uncertainty. In this regard, there is a degree of irony in my colleague's emphasis upon the honour of the Crown as facilitating "reconciliation" which, she says, entails "promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes" (para. 22, emphasis added). The effect of my colleague's reasons would be quite the opposite. She invites s. 35 rights holders — that is, Indigenous peoples themselves — to spend many years and considerable resources litigating on the faint possibility that they have identified some "other form of recourse" that this Court finds "appropriate". In other words, even though "[t]rue reconciliation is rarely, if ever, achieved in courtrooms" (Clyde River, at para. 24), it is to the courtroom that my colleague's unresolved speculation would direct them. The burden of achieving reconciliation is thereby placed upon the one group of Canadians whose assertion of sovereignty is not what demands reconciliation with anyone or anything.
As my colleague Rowe J. explains (paras. 160-65), the effects of the legal uncertainty generated by Karakatsanis J.'s reasons would also be felt by legislators, who are, in essence, being told that they cannot enact legislation that "affects" (but does not infringe) certain rights that might exist — and that, if they do, they may be subject to as-yet unrecognized "recourse".
An apex court should not strive to sow uncertainty, but rather to resolve it by, wherever possible (as here), stating clear legal rules. To be clear, then: judicial review of the legislative process, including post-facto review of the process of legislative enactment, for adherence to s. 35 and for consistency with the honour of the Crown, is unconstitutional."
The reasons reveal a sharp divide within Canada's highest court on this issue and it creates uncertainty about potential challenges to future federal, provincial, and territorial legislation. This will likely be an area of future litigation which we will monitor and report on.
*Brandon Kain and Bryn Gray acted for the intervener Advocates for the Rule of Law in this appeal.
1 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40. Judgment released on October 11, 2018.
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