The Supreme Court of Canada released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council) on October 11, 2018. Seven justices found that the duty to consult Indigenous peoples does not apply to the law-making process, primarily on the grounds of the constitutional principles of separation of powers and Parliamentary sovereignty. They held that ministerial action in developing legislation is legislative, not executive, in character and so is immune to judicial review. However, two justices disagreed and held that the honour of the Crown governs the relationship between the entire government of Canada and Indigenous peoples and so 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 legislative action.
In 2012, two omnibus bills with significant effects on Canada's environmental protection regime were introduced into Parliament, passed, and received royal assent. The Mikisew Cree First Nation ("Mikisew Cree") were not consulted with respect to the bills. They brought an application for judicial review pursuant to the Federal Courts Act ("FCA"), arguing that the bills had the potential to adversely affect their hunting, trapping, and fishing rights under Treaty No. 8 and that therefore the Crown had a duty to consult them on the development of the legislation.
The Federal Court agreed with the Mikisew Cree and held that the duty to consult was triggered. The Mikisew Cree were entitled to notice of the potentially adverse provisions in the legislation and an opportunity to make submissions. The Federal Court of Appeal allowed Canada's appeal, holding, among other things, that the Federal Court had no jurisdiction under the FCA to conduct a judicial review of legislative action. The Mikisew Cree appealed to the Supreme Court of Canada.
No Jurisdiction to Review
The Court unanimously held that the Federal Court lacked jurisdiction under the FCA to consider the Mikisew Cree's application for judicial review. Section 17 provides for relief against the Crown, but that term does not include executive actors when exercising legislative power. Sections 18 and 18.1 provide jurisdiction for the Federal Court to review actions taken by a "federal board, commission or other tribunal", but ministers do not act in that capacity when developing legislation.
Duty to Consult
The more contentious issue before the Court was whether there is a justiciable duty to consult the Mikisew Cree when developing legislation that could adversely affect their treaty rights.
Justice Karakatsanis, writing for herself and two others, held that the development, passage, and enactment of legislation does not trigger the duty to consult. Recognizing such a duty would undermine longstanding constitutional principles, including: (i) the separation of powers, which mandates that one branch of government does not unduly interfere with another; (ii) parliamentary sovereignty, which mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority; and (iii) parliamentary privilege, which mandates that the law-making process is largely beyond the reach of judicial interference. Applying the duty to consult during the law-making process would lead to significant judicial incursion into the workings of the legislature. Imposing a duty to consult during the development of legislation also raises practical concerns, including limiting the possibility of meaningful accommodation after its adoption.
Justice Karakatsanis notes, however, that the duty to consult is not the only means to give effect to the honour of the Crown, and that other doctrines may be developed to ensure the consistent protection of s. 35 rights and to give full effect to the honour of the Crown through review of enacted legislation. Unfortunately, she does not elaborate on this point, but does suggest that statutory regimes that preclude consultation may be inconsistent with section 35. Karakatsanis J. also notes that consultations are still a matter of inquiry in relation to assessing whether an impugned measure is consistent with the honour of the Crown under the Sparrow analysis.
Justice Brown also found that there is no duty to consult Indigenous peoples during the law-making process. He held that the entire law-making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference. The separation of powers protects the process of legislative policy-making by Cabinet and the preparation and introduction of bills for consideration by Parliament (and provincial legislatures) from judicial review. The absence of inadequacy of consultation may be considered only once the legislation has been enacted, and then only in respect of a challenge under s. 35 to the substance or the effects of such enacted legislation (not to the legislative process).
Justice Rowe, writing for himself, Moldaver and Côté JJ., agreed with Justice Brown. Recognizing a duty to consult during the parliamentary process would mean that all legislation with the potential to adversely affect an Aboriginal right would be presumptively unconstitutional unless adequate consultation had occurred. It would also be highly disruptive to the process of preparing legislation and could effectively grind the day-to-day internal operation of government to a halt. It would call upon the courts to take an interventionist role to supervise interactions between Indigenous nations and lawmakers.
Justice Abella, writing for herself and Justice Martin, disagreed with the majority on the duty to consult and found that it applies to all exercises of Crown power, including legislative action . The enactment of legislation gives rise to a duty to consult where it has the potential to adversely affect rights protected by section 35. Justice Abella held that the duty to consult arises based on the effect, not the source, of government action. Looking to its jurisprudential development, she found that the rationale for the duty to consult applies equally to legislative action as to executive action. Therefore, the same analytical approach should apply. To hold otherwise would leave a void in the honour of the Crown and a corresponding gap in the section 35 framework. The associated challenges can be addressed under the flexibility of the duty to consult. Further, the duty to consult is only triggered where the potential impacts on the Aboriginal right or title are sufficiently foreseeable and direct to engage the honour of the Crown.
What It Means
The separate reasons for judgement on the duty to consult create some uncertainty. The majority of the Court found that the traditional doctrines of separation of powers and Parliamentary sovereignty preclude the application of the duty to consult during the law-making process. Two justices registered a contrary view. Although no duty to consult applies during the development of legislation, the Crown is not absolved of its obligation to act honourably towards Indigenous peoples. Legislation that infringes s. 35 rights remains subject to challenge.