Although the Crown must act honourably toward Canada’s Indigenous peoples, Parliament is not required to consult them when making laws, the Supreme Court of Canada ruled today.
At the heart of today’s ruling were the issues of parliamentary sovereignty, and the separation of powers between the three branches of government as set out in the Constitution: the executive, the legislative and the judiciary.
“The appellant Mikisew Cree First Nation argues that the Crown had a duty to consult them on the development of environmental legislation that had the potential to adversely affect their treaty rights to hunt, trap, and fish,” Justice Andromache Karakatsanis wrote, with Chief Justice Richard Wagner and Justice Clément Gascon concurring in her reasons.
“This Court must therefore answer a vexing question it has left open in the past: Does the duty to consult apply to the law-making process?” The answer, Karakatsanis concluded, was no.
“Two constitutional principles — the separation of powers and parliamentary sovereignty — dictate that it is rarely appropriate for courts to scrutinize the law-making process,” she continued.
However, when legislation undermines s. 35 of the Constitution Act, 1982 — which provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada — “it may be declared invalid pursuant to s. 52(1) of the Constitution Act, 1982,” she wrote.
Yet the Supreme Court justices were divided in their views of the “honour of the Crown” — i.e., Canada’s requirement to act honourably toward Indigenous peoples — and the Crown’s duty to consult them, with four sets of reasons written in total.
“You can say that five judges said the honour of the Crown applied” in this case and “three said, we’ll figure out how that works later,” said Robert Janes, a partner at JFK Law Corporation in Victoria, who represented the appellant Mikisew Cree First Nation before the high court. “Four said the duty of consult doesn’t apply and we’re not going to mess with the process of Parliament.” The remaining two justices agreed with the appellant that there was a duty for Parliament to have consulted with First Nations in the drafting of legislation, but they agreed that the Federal Court did not have jurisdiction to review ministers’ actions.
“Right now, it’s a bit of mess as to what the real result is,” Janes told Legal Feeds.
In April 2012, two pieces of omnibus legislation with significant effects on Canada’s environmental protection regime were introduced into Parliament. The Mikisew Cree First Nation was not consulted on either of these omnibus bills. It brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the legislation, since it had the potential to adversely affect their treaty rights to hunt, trap and fish under Treaty No. 8.
The reviewing judge granted a declaration to the effect that the duty to consult was triggered and that the Mikisew were entitled to notice of the relevant provisions of the bills, as well as an opportunity to make submissions.
On appeal, a majority of the Federal Court of Appeal concluded that the reviewing judge erred by conducting a judicial review of legislative action contrary to the Federal Courts Act. The majority held that when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review. It deemed the reviewing judge’s decision to be inconsistent with the principles of parliamentary sovereignty, the separation of powers and parliamentary privilege. The Mikisew appealed this decision.
Justice Rosalie Abella agreed that Parliament had a duty to uphold the honour of the Crown, but she found that this included a duty to consult Indigenous groups when making laws that might adversely affect them.
“The honour of the Crown governs the relationship between the government of Canada and Indigenous peoples,” Abella wrote, with Justice Sheilah Martin concurring. “This obligation of honour gives rise to a duty to consult and accommodate that applies to all contemplated government conduct with the potential to adversely impact asserted or established Aboriginal and treaty rights, including, in my view, legislative action.”
In another set of reasons, Justice Russell Brown found that the Crown had no duty to consult in advance of making legislative decision affecting First Nations. The “honour of the Crown” only bound the executive of the government (i.e., the prime minister and his cabinet) and not Parliament; so, Parliament had no duty to consult the Mikisew.
Justice Malcolm Rowe, with justices Michael Moldaver and Suzanne Côté concurring, added additional reasons for why there was no duty to consult in preparing laws. Where Indigenous rights were alleged to have been infringed under s. 35 of the Constitution, remedies are available “under the infringement framework set out in R. v. Sparrow,” Rowe wrote. Second, “Recognizing a constitutionally mandated duty to consult during the process of preparing legislation would be highly disruptive to the carrying out of that work.” And third, recognizing a duty to consult during the law‑making process would call upon the courts to play an interventionist role and “supervise interactions between Indigenous parties and those preparing legislation for consideration by Parliament and by provincial legislatures.”
Janes says the takeaway from this decision for Indigenous peoples is, first, that they must “continue to fight these projects, as they continue to come up, to advance their rights,” and second, “since all judges said that consultation could be dealt with in the context of infringement [of rights], we will likely see more infringement cases brought.
“I do also think a lot of First Nations will look at political avenues to pursue,” perhaps at the international level, as Canada’s regime is “out of line” with the United Nations Declaration on the Rights of Indigenous Peoples, says Janes.
“UNDRIP says governments should consult Indigenous peoples on legislation; there’s definitely a gap between what we know Canadian law says and what UNDRIP says.”
In terms of larger commentary, Janes adds, “It’s interesting that we’re seeing a move back toward pre-McLachlin days” of many sets of reasons in a judgment, “which makes it hard to know what the court really decided.”
In a statement, Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada said: "Today, the Government of Canada received the Supreme Court of Canada’s decision in Chief Steve Courtoreille et al vs Governor in Council et al. This decision helps clarify how the duty to consult operates in relation to the legislative process. The Government will now thoroughly review the decision.
“While the court has been clear that the duty to consult is not triggered in the legislative process, it also makes clear that Indigenous rights must be respected, upheld and protected.
“Our Government remains wholly committed to respecting our Constitution and respecting and upholding Indigenous rights, and will continue to work collaboratively with Indigenous peoples on matters that directly and significantly affect them.”
Editor's note: Story updated to include comment from Jody Wilson-Raybould.