Duty to consult is not triggered during legislative process

Case:Canada (Governor General in Council) v. Courtoreille, 2016 FCA 311

On December 7, 2016, the Federal Court of Appeal released its Reasons for Judgment regarding whether the Crown’s duty to consult is triggered at the legislative development stage in Canada (Governor General in Council) v. Courtoreille.¹ The Court of Appeal found:

1. legislative action is not a proper subject for an application for judicial review under the Federal Courts Act; and
2. importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege.

Background

In 2012, the Minister of Finance introduced two omnibus bills resulting in amendments to certain acts. The Mikisew Cree alleged the bills affected their treaty rights in that they impacted navigable waters, fish habitats, environmental assessments, and species at risk.² The Mikisew Cree argued the Crown should have consulted with it during the development of the legislation and upon its introduction into Parliament.

Federal Court Decision

The lower court found Mikisew Cree was seeking judicial review of the process undertaken by Ministers before legislation had been drafted and presented to Parliament. In that regard, the matter was justiciable. However, he held, if there was a duty to consult, it could not trigger judicial intervention before the introduction of a bill by virtue of the separation of powers doctrine. The judge found that the appropriate remedy was a declaration that the Crown had a duty to consult with the Mikisew Cree at the time each omnibus bill was introduced in Parliament by giving notice and an opportunity to provide submissions.

Federal Court of Appeal Decision

1.  Judicial Review of Legislative Actions

The Court of Appeal held that judicial review is concerned with government action and not with the creation of legislation.³ This is evident in the Federal Courts Act, which provides two requirements for the Court to be seized of an application for judicial review.

First, there must be an identifiable decision or order in which of which a remedy is sought. Second, the impugned decision or order must be made by a “federal board, commission or other tribunal”.⁴ Section 2(2) of the Federal Courts Act specifically excludes the Senate and the House of Commons from the scope of “federal board, commission or other tribunal”. Therefore, the Court of Appeal found that the second requirement is clearly not met in this case as the true object of Mikisew Cree’s complaint was legislative in nature. It is important to note the Mikisew Cree chose not to attack the legislation itself.⁵ The Court held that legislative actions, therefore, are not only not subject to judicial review but immune from judicial review.

2.  Duty to Consult

The Court held that Parliamentary sovereignty and the separation of powers doctrine are “well-established pillars of our Constitution”.⁶ It is not the place of the judiciary to supervise or interfere with the functioning of the legislature by imposing a duty of consultation prior to the passing of legislation.⁷ The Court held that the legislative process is already sufficiently vulnerable to constitutional evaluation and the consequences of the legislation are capable of remedy under law if need be.

The Court also found that there was no duty of fairness that attaches to the formulation and introduction of a bill into Parliament.⁸ The only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons prior to receiving Royal Assent.

Finally, the Court struck the lower court’s declaration that the Crown had a duty to consult with the Mikisew Cree at the introduction of the bill into Parliament.⁹