Last week the Supreme Court of Canada (“SCC”) released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40. The Court addressed a question it had previously left unanswered: does the duty to consult apply to the law-making process? Seven of the nine justices found that the duty to consult does not apply.
This case involved two omnibus bills that were passed in 2012, which amended much of Canada’s environmental legislation. The applicant Mikisew Cree First Nation alleged that the bills adversely affected its members’ ability to exercise their rights to hunt, fish and trap, which are guaranteed by Treaty No. 8.[1] The Mikisew challenged the federal government’s failure to consult them in the process of drafting and enacting those bills.
In four concurring opinions, the SCC unanimously found that the Federal Court did not have the jurisdiction in the first place to review the decisions of Ministers when they are exercising their law-making powers. Despite the appeal being decided on this point of jurisdiction, they proceeded to address the underlying issues as well.
The Duty to Consult
The opinions of Karakatsanis, Brown, and Rowe, JJ. (representing seven justices in total, referred to hereinafter as the “Seven Justices”)[2] found that the Crown’s duty to consult does not apply to Ministers during the law-making process and is limited to executive action.
The two remaining justices[3], dissenting on this point in an opinion written by Abella. J., found that the duty to consult may indeed arise when government is enacting legislation—and that the same test to determine when it is triggered, as laid out in Haida Nation v. British Columbia (Minister of Forests)[4] should apply. In relation to the Seven Justices’ opinions, Abella, J. wrote:
Endorsing such a void in the honour of the Crown would create a corresponding gap in the s. 35 framework, leaving Aboriginal rights‑holders vulnerable to the same government objectives carried out through legislative, rather than executive, action. [para 79]
The Seven Justices emphasized in their reasons the separation of powers between the executive and judicial branches of government, and Karakatsanis, J. speculated that if the courts were to supervise the government’s law-making process, it “may require courts to improperly trespass onto the legislature’s domain” [para 35]. Abella, J., dissenting on this point, stated that the law-making process is already suited to consultation activities, including providing notice and allowing for parties to make submissions. She further stated:
The issues in this appeal require this Court to reconcile, not choose between, protecting the legislative process from judicial interference and protecting Aboriginal rights from the legislative process. [para 84]
Brown, J. found that the exercise of Crown authority in enacting legislation is not “Crown conduct” for the purposes of the Haida test that dictates when the duty to consult applies.
Karakatsanis, J. found that any limits on the law-making process may constrain Parliament, which also offends the concept of Parliamentary sovereignty. Brown, J. focused on parliamentary privilege, which empowers Parliament to enact legislation with complete freedom. In contrast, Abella, J. stated that parliamentary sovereignty “cannot displace the honour of the Crown” which is at stake in the entirety of government’s relationship with Indigenous peoples, and rather should be “balanced against other aspects of the constitutional order, including the duty to consult” [para 91].
The Honour of the Crown
Though she found that the duty to consult is not engaged in the legislative process, Karakatsanis, J. stated that the Crown is still required to act honourably and that First Nations may be entitled to declaratory relief should the Crown fail to do so:
The constitutional principles… that preclude the application of the duty to consult during the legislative process do not absolve the Crown of its duty to act honourably or limit the application of s. 35. [para 52]
As Abella, J. found that the duty to consult is engaged during the law-making process, and the duty to consult flows from the honour of the Crown, it follows that she also found that the honour of the Crown attaches to the law-making process.
Brown, J., however, disagreed and found that the honour of the Crown does not attach to the legislative process: “…the Crown does not enact legislation. Parliament does. The honour of the Crown does not bind Parliament” [para 135]. He further found that in leaving the possibility of relief due to a failure to uphold the honour of the Crown, Karakatsanis “would cast the law into considerable uncertainty” [para 142].
Rowe, J., concurred with Brown, and stated that the honour of the Crown can be upheld under “the current jurisprudence” [para 153].
Therefore, the justices split 5-4 in favour of the honour of the Crown applying to the law-making process.
Practical Considerations
The Seven Justices’ reasons suggested that including the duty to consult in the law-making process would make the process too difficult. Karakatsanis, J. wrote:
…in the long chain of events contributing to the development of legislation, disentangling what steps the duty to consult applies to (because they are executive) and what actions are immune (because they are parliamentary) would be an enormously difficult task. [para 40]
Similarly, Rowe, J wrote: “What is now complex and difficult could become drawn out and dysfunctional” [para 164].
In contrast, Abella, J., stated:
There is no doubt that the honour of the Crown and the corresponding duty to consult may have an impact on the legislative process. But that is inevitable if the guarantee under s. 35 [of the Constitution Act, 1982] is to be taken seriously. [para 85]
Remedies Available to First Nations
The Seven Justices found, despite their opinion that the duty to consult does not arise in the law-making process, that First Nations whose rights are adversely affected by legislation are “not left without a remedy” [per Karakatsanis, J., at para 3]. They found that First Nations may bring a judicial action in a future case if their rights are adversely affected or infringed by the legislation.
Conclusion
This decision means that the duty to consult is not triggered when the federal government develops laws. While Canada may choose to engage with Indigenous peoples when developing legislation, there is no legal requirement to do so, and the set of binding principles found in the “duty to consult” case law do not apply. This has the potential to harm both Canada and Indigenous peoples, as it may lead to an increase in legal challenges to federal laws for infringement of s. 35 Constitution Act 1982 Aboriginal or treaty rights. These potential challenges may have been avoided if the federal government had engaged in full “consultation” during the laws’ development (following the principles the Court has established in Haida Nation and subsequent cases).
While the Court held the “duty to consult” does not apply to the legislative development process, the majority of the Court did hold that principles of “the honour of the Crown” apply to this process. The Court did not elaborate on what this means in practical terms, however this does create an avenue for Indigenous peoples should they believe that the Crown has not fulfilled the requirements of the honour of the Crown during the law-making process.
[1] Note that treaty rights are protected by s. 35 of the Constitution Act, 1982.
[2] Karakatsanis J. (Wagner C.J. and Gascon J. concurring); Brown J.; and Rowe J. (Moldaver and Côté JJ. concurring).
[3] Abella J. (Martin J. concurring).
[4] 2004 SCC 73.
Summary by Erin Gray