A Comparative Analysis: Public Consultation For Bill 4, The Cap And Trade Cancelation Act, 2018, And The Federal Duty To Consult Aboriginal Peoples Under S.35

On October 11, 2018, the Supreme Court of Canada released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 [Mikisew], in which the Court held that the Federal Government does not have a duty under s.35 of the Constitution Act, 1982 to consult Aboriginal Peoples in the development of legislation. Mikisew was an application by the Applicant Indian Band to the Federal Court for judicial review of Parliament's introduction of two omnibus Bills in 2012 that had significant effects on Canada's environmental protection regime and had the potential to adversely affect the Mikisew's treaty rights to hunt, trap and fish. The Mikisew had not been consulted on either of the omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew argued that the Crown had a duty to consult it on the development of the legislation.

While the Federal Court at the first level allowed the Mikisew's Application, the Federal Court of Appeal granted the Crown's appeal. In granting the appeal, the Federal Court of Appeal found that the reviewing judge had erred by conducting a judicial review of what amounts to a legislative action contrary to the Federal Courts Act, RSC 1985, c F-7.

The Issues before the Supreme Court of Canada were twofold:

Did the Federal Court have jurisdiction under ss. 18 and 18.1 of the Federal Court's Act to hear the Application? Does the development of legislation by Ministers trigger the duty to consult Aboriginal Peoples under s.35 of the Constitution Act, 1982? On the first issue, the SCC found that while s.17 of the Federal Courts Act gives the Federal Court concurrent original jurisdiction where relief is claimed against the Crown, this jurisdiction does not extend to the review of the exercise of legislative power by executive actors. The SCC also found that ss. 18 and 18.1 of the Federal Courts Act only grant the Federal Court jurisdiction to judicially review action taken by a "federal board, commission or other tribunal", which is defined in s. 2(1) of the Act as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown.

The SCC noted that s.2(2) of the Federal Courts Act specifies that the Senate, the House of Commons, or any committee or member of either House is not a federal board, commission or other tribunal within the meaning of s.2(1). Moreover, the SCC reasoned that Ministers do not act pursuant to...