Is There A Duty To Consult On Legislation? SCC May Decide

This week the SCC received an application to hear an appeal of the Federal Court of Appeal ("FCA") decision in Canada (Governor General In Council) v Courtoreille1 ("Courtoreille"). The FCA allowed the appeal from the lower court decision and held that the Crown does not have a duty to consult when "contemplating changes to legislation that may adversely impact treaty rights."2 This decision engages well established democratic principles, Constitutional rights, the development of Aboriginal Law and the duty to consult.

Background

In 2012, the federal government introduced two omnibus bills, Bills C-38 and C-45 (the "Omnibus Bills"). The Omnibus Bills amended several federal environmental laws, including the Fisheries Act,3 Species at Risk Act,4 Canadian Environmental Protection Act, 19995 and former Navigable Waters Protection Act (now the Navigation Protection Act).6 The Omnibus Bills also repealed and replaced the Canadian Environmental Assessment Act.7 The purpose of these changes was to streamline the permitting process for many projects.

Chief Courtoreille and the Mikisew Cree First Nation ("Mikisew Cree"), signatories to Treaty 8, brought an application for judicial review, alleging that the Omnibus Bills "reduced federal regulatory oversight on works and projects that might affect their treaty rights to hunt, fish and trap."8 The Mikisew Cree argued that they should have been consulted during the development of the Omnibus Bills.

The Mikisew Cree's argument raises an important issue for Aboriginal law that has yet to be considered by the Supreme Court of Canada. In Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, the Supreme Court noted that the duty to consult attaches to strategic, higher level decisions.9 Examples of strategic decisions giving rise to the duty to consult include forest stewardship plans, municipal land use plans, and regional water management plans. The case leaves open the question of whether, and to what extent, legislative action or reform triggers the duty to consult.10

Mikisew Cree were successful in the first decision. The Federal Court found that the federal government had a duty to consult the Mikisew Cree for certain amendments to the Navigation Protection Act and Fisheries Act which had the potential to adversely impact fishing and trapping rights. This duty was triggered when the Omnibus Bills were introduced to Parliament, and included a duty to give notice and a reasonable opportunity to make...