Supreme Court Decides That Duty To Consult Does Not Apply To Law-Making Process: Mikisew Cree First Nation v Canada

On October 11, 2018, the Supreme Court of Canada ("SCC") released its decision in Mikisew Cree First Nation v Canada (Governor General in Council) ("Mikisew Cree").1 A majority of the Court held that the duty to consult is not triggered by the development of legislation.

The SCC offered four competing opinions about the scope of the duty to consult and whether the honour of the Crown applies to the Legislature. The divided decision indicates that this may be more of a policy than a legal question. The Court recognises that its analysis would not apply where existing Land Claim Agreements require consultation in relation to proposed legislation.2

Facts

In 2012 Parliament tabled two bills (Bill C-38 and C-45, collectively, the "Omnibus Bills").3 The Omnibus Bills proposed sweeping changes to federal environmental laws.4

Chief Courtoreille and the Mikisew Cree First Nation (collectively, the "Mikisew Cree") alleged that the Omnibus Bills adversely affected their rights to hunt, trap and fish under Treaty 8.5 The Mikisew Cree applied to the Federal Court seeking, among other things, a declaration that the federal Ministers have a duty to consult with the Mikisew Cree regarding the development and introduction of the Omnibus Bills.6

Lower Court Decisions

The Federal Court found that the law-making process triggers the duty to consult and that the Omnibus Bills adversely affected the Mikisew Cree's established Treaty rights.7 The Federal Court issued a declaration that the Mikisew Cree were entitled to consultation.8

The Federal Court of Appeal disagreed, and held that the Federal Courts Act9 barred the Federal Court from judicially reviewing legislative action.10 The Federal Court of Appeal also found that requiring consultation during the law-making process would "be impractical" and would interfere with "Parliament's law making capacity."11

The Mikisew Cree appealed to the SCC and argued that the:

Federal Court has jurisdiction to review the law-making process, and development and introduction of the Omnibus Bills triggered the duty to consult. See our earlier article on the Mikisew Cree's application here.

The Mikisew Cree's application raised important questions for the SCC. Does the honour of the Crown apply to the Legislature? Do governments trigger the duty to consult when they develop policy? And what remedies can or should Courts grant if governments develop legislation that could impact Indigenous rights?

The Supreme Court's Decision

The SCC

unanimously found that the Federal Courts Act does not permit judicial review of 1parliamentary activities, including the development of legislation,12 and dismissed the Mikisew Cree's application,13 and split on the issue of whether the duty to consult is triggered where the Crown develops, 2passes or enacts legislation that may adversely affect Indigenous rights.14 The Duty to Consult

The SCC's decision on the duty to consult is split across four sets of reasons.

Seven out of nine Justices (a majority) found that the duty to consult is not triggered by the development of legislation:

Justice Karakatsanis (Chief Justice Wagner and Justice Gascon concurring)15 Justice Brown,16 and Justice Rowe (Justices Moldaver and Côté concurring), concurring with the reasons of Justice Brown.17 Two Justices (a minority) disagreed, and concluded that the duty to consult is triggered by the development of legislation. The dissenting opinion was delivered by Justices Abella and Martin.18

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