On October 11, 2018, the Supreme Court of Canada (“SCC”) released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council). In this case, the SCC was tasked with considering whether the duty to consult applies to the drafting, passing or enacting of legislation.
At issue in the case were omnibus Bills C-38 and C-45, which were introduced to Parliament in 2012. The omnibus bills included significant changes to Canada’s environmental regulation and protection scheme that the Mikisew Cree First Nation (“Mikisew”) asserted had the possibility of adversely affecting their Treaty No. 8 rights to hunt, trap and fish, which are recognized and affirmed by section 35 of the Constitution Act, 1982, and that they should have been consulted in the legislative process.
The bills received royal assent and the Mikisew brought a judicial review at the Federal Court. The Federal Court held that the duty to consult was triggered and that the Mikisew were entitled to notice of and the opportunity to make submissions with respect to provisions that could adversely impact their Aboriginal or treaty rights. The Federal Court of Appeal overturned the lower court decision on the basis that the Federal Court lacked jurisdiction.
The SCC unanimously upheld that the Federal Court did not have the requisite statutory jurisdiction to consider the matter under the provisions of the Federal Courts Act. The SCC was split on the duty to consult during federal law making, releasing four sets of reasons, determining by a 7-2 majority that the duty to consult does not apply to the legislative process. These judgements all focused on the alignment of two competing constitutional principles: (a) the rights and protections afforded to Indigenous Peoples that are based in the honour of the Crown and, (b) the importance of parliamentary sovereignty and privilege during the legislative process.
Karakatsanis J. (Wagner C.J. and Cascon J. concurring), reasoned that applying the duty to consult into the legislative process would breach the principles of parliamentary sovereignty and privilege by inviting “inappropriate judicial intervention into the legislature’s domain”. On this basis, the duty to consult should not be applied in the law-making process.
Brown J. categorically reasoned that the separation of powers and parliamentary privilege are overriding constitutional principles and that the judiciary should not interfere in the law-making process and further, that the honour of the “Crown” does not bind parliament. He clearly delineated the two roles of the Crown as “legislative” and “executive”, stating that only executive actions and functions are subject to the court’s review.
Rowe J. (Moldaver and Côté JJ. concurring) largely agreed with the reasons of Brown J.
Dissenting, Abella J. (Martin J. concurring), took a broad and purposive approach and held that the duty to consult applies in all dealings where the Crown is contemplating conduct that could adversely impact Aboriginal and treaty rights. Abella J. took the position that the focus should be on the potential impact on Aboriginal and treaty rights rather than the mechanism that would result in the potential harm, i.e. the legislative process.
The duty to consult does not apply to the drafting, passing or enacting of legislation. This ruling provides certainty that enacted laws will not be overturned on the basis of inadequate consultation.
However, the reasons were split on whether the honour of the Crown applies to legislators, creating a degree of uncertainty with respect to the conduct of law-makers in carrying out their duties. Further, this uncertainty creates tension with the reasons set out in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council with respect to the indirect impacts of high-level or strategic decisions and the generally broad and flexible approach to the duty to consult generally as expressed throughout the previous case law.
While judicial review of draft legislation is not possible, the following remedies remain available to challenge validly enacted legislation that may adversely impact Aboriginal and treaty rights:
- Declaratory relief, such as a holding that violating legislation is invalid under section 52(1) of the Constitution;
- Infringement and justification of Aboriginal and treaty rights framework as set out in R v. Sparrow; and
- Where executive (governmental) decisions or actions are contemplated under legislatively granted authority, Indigenous claimants can continue to rely on the duty to consult through judicial review.
For industry, additional considerations will now have to be given to legislation that may impact Aboriginal or treaty rights in the even that a concerned or affected First Nation chooses to seek declaratory relief based on the legislation itself or a constitutional challenge under the Sparrow test, particularly where an affected First Nation raises the constitutional question early on in the regulatory process.
Practically, where legislation does not afford the degree of consultation and accommodation that a First Nation considers sufficient, constitutional review and challenges may become more commonplace. Ironically, this may create even more uncertainty in the applicability of such legislation and uncertainty for project approvals and financing decisions to support them.