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:

legislative action is not a proper subject for an application for judicial review under the Federal Courts Act; and 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...