No Duty To Consult In The Legislative Process – Courtoreille v. Canada, 2016 FCA 311

The Federal Court of Appeal recently released a significant decision that limits the scope of Crown conduct that may trigger itsduty to consult with Aboriginal peoples and reinforces parliamentary privilege. In Courtoreille v. Canada, released on December 7, 2016, the Federal Court of Appeal concluded that the entire legislative process - from the discussion of policy options to the introduction and passage of legislation - cannot trigger the duty to consult regardless of whether the legislation at issue has the potential to adversely impact asserted or established Aboriginal or treaty rights.

This decision overturned a previous ruling by the Federal Court (2014 FC 1244) which held that the federal government had a duty to consult the Mikisew Cree following the introduction of the contentious Omnibus legislation (Bills C-38 and C-45) in 2012 that made changes to Canada's environmental assessment regime through CEAA 2012, as well as related environmental legislation including the Fisheries Act, Species at Risk Act, and the Navigable Waters Protection Act (now Navigation Protection Act). This Omnibus legislation sought to streamline certain regulatory processes and reduce the number of projects that were subject to federal environmental assessment. At the Federal Court...