Environmental, Indigenous and Natural Resources Blog

The Supreme Court of Canada has confirmed in Mikisew Cree First Nation v. Canada (Governor General in Council) that there is no duty to consult Indigenous groups in the development of legislation. 

At issue in Mikisew was whether the Government of Canada had a duty to consult the Mikisew Cree First Nation on the development of environmental legislation that Mikisew said had the potential to adversely affect their treaty rights to hunt, trap, and fish. The particular legislative action at issue included the 2012 amendments to the Fisheries Act, Species at Risk Act, and the Navigation Protection Act, as well as the enactment of the Canadian Environmental Assessment Act, 2012.  A more detailed review of the facts can be found in our previous post titled “The Seven Year Itch”.

The Court was unanimous that the case should be dismissed because the Federal Court — where the proceeding was initiated — had no jurisdiction to hear the claim. The Federal Court is a statutory court and only has jurisdiction over matters expressly granted to it under the Federal Courts Act. That Act does not provide the Federal Court with the power to review parliamentary activities such as the development of legislation.

However, in four separate sets of reasons, the Court went on to consider whether the duty to consult applies to legislative action. A seven-judge majority of the Court held that it does not, confirming that "the development, passage, and enactment of legislation — does not trigger the duty to consult".  The reason for this is two-fold:

• First, the separation of powers protects the law-making process of the legislature from judicial oversight — in the words of Justice Brown, the entire law-making process is an exercise of legislative power that is “immune” from judicial interference. Allowing courts to review how legislatures make laws would offend this important principle.
• Second, parliamentary sovereignty and privilege protect the freedom of the legislature to "make or unmake any law it wishes", within the confines of its constitutional authority.

A further concern noted by the Court is the practical difficulty of requiring consultation at every step of the legislative process, with three judges noting that "Imposing a duty to consult at this stage could effectively grind the day-to-day internal operation of government to a halt".

The decision contains a comprehensive overview of the law of parliamentary privilege, separation of powers, and Indigenous rights in Canada, with the various judges highlighting different aspects of these doctrines in their reasons. With the exception of two judges, the differences between the judges are a question of degree: whereas three judges left open the possibility that a different manifestation of the honour of the Crown towards Indigenous peoples could perhaps restrain legislative action in the future, a plurality of four judges categorically held it could not.  Only two of the judges (interestingly the most senior and junior judges on the Court) held that the duty to consult could apply to legislative action.

The Court reiterated that just because the duty to consult does not apply to the legislative process, Indigenous groups still have a remedy for infringement (or potential infringement) of their rights through existing legal processes, which can be considered once the legislation at issue has been enacted. The Court was clear, however, that even though a duty to consult does not apply as a matter of law during the legislative process, there is nothing stopping a legislature from doing so voluntarily, and indeed such consultation may be an important consideration if a law, once enacted, is challenged on the grounds that it unjustifiably infringes Indigenous rights.  In fact, it is becoming more common for governments to consult on proposed legislation, either before introduction into the legislature or as the legislation is proceeding through the legislature. 

It is not often that one sees four different sets of reasons in a Supreme Court of Canada decision. This case highlights the rigorous debate that can occur when competing principles of constitutional law in Canada are put to the test in a novel context. For now, the Supreme Court of Canada has given us certainty about the application of the duty to consult in the legislative process, though it has given itself sufficient room to "scratch the itch" and revisit the issue should appropriate circumstances arise in the future.