On September 22, 2022, the N.L. Supreme Court confirmed the Nunatsiavut Assembly is a legislative body that holds all privileges, immunities, and powers necessary for it to function as an effective parliamentary institution, including parliamentary privilege. The landmark decision in Saunders v. Nunatsiavut Assembly  appears to be the first time a Canadian court has considered whether the legislature of an Indigenous self-government benefits from the protection of parliamentary privilege – but it’s unlikely to be the last. As more Indigenous Groups achieve self-government, through land claims agreements or otherwise, challenges to the decisions of their governments, and whether and to what extent parliamentary privilege protects them, are likely to arise with greater frequency. The Court’s decision is instructive for both existing and future Indigenous governments:

Review Self-Governance Powers. The existence of parliamentary privilege is critical to the ability of any government, including Indigenous governments, to govern without intervention by courts or other bodies. Parliamentary privilege, and the resulting ability to govern free from intervention, is particularly important for new Indigenous governments, for which any successful challenge could compromise the respect for the government’s authority – and be detrimental to the meaningful right to self-govern. Existing Indigenous governments can review the agreements granting them self-governance rights and the legislation effecting those rights, and particularly their “organizing statute” (in this case, the Nunatsiavut Assembly Act), to confirm the language is sufficiently broad to convey the full scope of parliamentary privilege and ensure they don’t contain any unintended limitations. Future Indigenous governments can be mindful of the issue of parliamentary privilege when negotiating self-governing agreements and drafting their organizing statute and other legislation.

The Legal Test is Onerous. The legal test to determine the existence of a category of parliamentary privilege arguably remains an open question. Here, the Court faced deciding which test the Nunatsiavut Assembly had to meet to prove the category of the parliamentary privilege claimed exists: the test applied at the federal level, or the test applied at the provincial level. Its decision that the Assembly’s parliamentary privilege isn’t rooted in the Canadian Constitution, as they are at the federal level, but is instead more akin to those of provincial legislative assemblies, holds important implications for Indigenous self-government. It means the less onerous test for the existence of a parliamentary privilege category applicable at the federal level doesn’t apply. Under this test, the legislative assembly need only prove that the privilege claimed is an established category of privilege; once established, the court’s inquiry ends. Instead, the Court found the more onerous provincial level test applies. Under this test, the assembly must prove that the category of privilege claimed continues to be “necessary” for the legislature to do its work with dignity and efficiency. In this case, the Court concluded the Nunatsiavut Assembly met the necessity test. But the imposition of the more onerous necessity test means that if there’s another challenge to a decision by the Assembly (or another by another Indigenous government) to discipline a member, a court won’t simply rely on the decision in Saunders v. Nunatsiavut Assembly to establish that member discipline is an established category of privilege. While this decision will be relevant to the analysis, the Assembly (and every other Indigenous government) must, once again, meet the necessity test.

Know the Established Categories of Privilege. Although (for now) Indigenous governments must meet the stricter “necessity” test each time their parliamentary privilege is challenged, it’s still of value to be familiar with the established categories of parliamentary privilege. As the Court in Saunders v. Nunatsiavut noted, evidence that a privilege has historically been recognized can aid in proving the continuing necessity of the privilege claimed. And, those historically recognized privileges will be instructive to newer self-governments as a guide to what decisions might attract the protection of privilege. Established categories of parliamentary privilege are those that are well established in prior court decisions and have historically been considered by courts to be justified by exigencies of parliamentary work, and include:

• Control over debates or proceedings, including the removal of an official or representative and the process leading to it.
• Control over day-to-day procedures.
• Power to exclude strangers.
• Freedom of speech.
• Discipline over members
• Administration of internal affairs.

This doesn’t mean that legislative decisions not within an established category can never be protected by parliamentary privilege; it does mean a government (including the federal government) claiming a “new” category of privilege must convince a court that the new category is necessary for the proper functioning of the legislature.

Here’s a review of the context of Saunders v. Nunatsiavut, the Assembly’s disputed resolution, and the Court’s ultimate decision. McInnes Cooper Litigation Lawyers Amanda Nash and Andrea Williams represented the successful party. 

The Context

An appreciation for the concept of parliamentary privilege and the creation of the Nunatsiavut Assembly is helpful to understand the Court’s decision.

Parliamentary Privilege. Parliamentary privilege (sometimes referred to as “parliamentary immunity”) is widely accepted as an essential feature of democracy because it maintains the separation of powers under the Constitution as between the various branches of government. In its decision in Canada (House of Commons) v. Vaid, the Supreme Court of Canada described parliamentary privilege as, “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies, and by each member individually, without which they could not discharge their functions.” Where it applies to a particular subject-matter, the legislative assembly has exclusive jurisdiction over it, immune from intervention by any external body – including a court.

The Nunatsiavut Assembly. In 2004, the Inuit of Labrador as represented by Labrador Inuit Association, the Province of Newfoundland and Labrador, and the Government of Canada, entered into the Labrador Inuit Land Claims Agreement, ratified under the Labrador Inuit Land Claims Agreement Act. The Agreement sets out principles for the establishment of a free and democratic government for Inuit, including the establishment of a Constitution, of the Nunatsiavut Government, and of its legislative and executive institutions, including their composition, powers, and duties. Pursuant to the Agreement, the Nunatsiavut Constitution Act gives effect to the Labrador Inuit Constitution, which in turn establishes the Nunatsiavut Assembly as the Nunatsiavut parliament. The Nunatsiavut Assembly Act conveys parliamentary privileges to the Assembly and its members.

The Assembly Resolution 

Ms. Saunders was an elected member of the Assembly for the constituency of Hopedale. A constituent applied to the Speaker of the Nunatsiavut Assembly for review of an official’s conduct under The Nunatsiavut Code of Conduct for Elected Officials Act respecting Ms. Saunders’ conduct at a community meeting and her subsequent social media posts. Ms. Saunders undertook both in her personal capacity, and neither occurred inside the Assembly or its committees. Following Speaker review, an investigation by a discipline committee of the Nunatsiavut Assembly under the Code, and Ms. Saunders’ subsequent refusal to comply with the orders of the Discipline Committee regarding a public apology, the Nunatsiavut Assembly passed a motion to remove Ms. Saunders from office as a member of the Assembly. Ms. Saunders applied to the Court for a judicial review of this resolution. The Assembly argued its resolution is protected by parliamentary privilege, and is therefore immune from court review.

The Court’s Decision 

The N.L. Supreme Court agreed the Assembly’s decision to remove Ms. Saunders from office was protected by parliamentary privilege, and found that it didn’t have jurisdiction to review Ms. Saunders’ application for judicial review.

Parliamentary Privilege Applies to Nunatsiavut Assembly. To determine whether parliamentary privilege applied to the Assembly’s decision, the Court analyzed the creation of the Nunatsiavut Government. Through an examination of the language of each of the Labrador Inuit Land Claims Agreement, the Nunatsiavut Constitution Act, and the Nunatsiavut Assembly Act, and in particular their provisions respecting parliamentary privilege, jurisdiction, immunities, and powers generally, the Court concluded the Nunatsiavut Assembly has the necessary privileges, immunities and powers to function as an effective parliament – including parliamentary privilege. The Court also noted that denial of parliamentary privilege similar to that held by other Canadian legislative assemblies would be contrary to the Agreement’s aim of ensuring the Inuit’s right to self-government.

The Necessity Test Applies to Categories of Privilege. Noting that not all of a legislative assembly’s activities are protected from judicial review by parliamentary privilege, the Court confirmed that the Assembly bore the burden of proving both that the category of the parliamentary privilege claimed exists, and its scope. The Court decided the Nunatsiavut’s parliamentary privileges aren’t rooted in the Constitution, as are those at the federal level, but are more akin to those of provincial legislative assemblies. As a result, the Assembly had to meet the two-part test, which required it to prove both:

• Precedent. The claimed privilege has already been authoritatively established by precedent.
• Continuing Necessity. The privilege is supported as a matter of principle under the necessity test: the activity over which the privilege is claimed must be not only connected with the assembly’s fulfilment of its functions as a legislative and deliberative body that outside interference would undermine the autonomy required to enable it to do its work with dignity and efficiency, but also necessary to its constitutional role. Furthermore, the assembly must prove the necessity of the category of privilege continues at the relevant time.

The Resolution is Protected by Parliamentary Privilege. The Court concluded the category of privilege claimed meets the necessity test, that the Assembly’s actions were within the scope of that privilege, and that it wasn’t curtailed by any other statute.

• Category of Privilege Exists. The Court confirmed that a legislative assembly’s ability to regulate its internal affairs, including its members’ conduct, is a well-established and still necessary category of parliamentary privilege.

• The Resolution is Within the Scope of the Privilege. The Court clarified the distinction between delineating the scope of the privilege, which is for the courts, and the appropriateness of its exercise, which is for the Assembly. The Court dismissed Ms. Saunders’ arguments that the Assembly exceeded its privilege by disciplining her for personal conduct, and in requiring her to apologize. The Court concluded both are within the scope of the Assembly’s privilege to regulate its members’ conduct, and both are questions of the exercise, not the scope, of the Assembly’s privilege – and thus beyond the Court’s purview.
• The Privilege Isn’t Statutorily Restricted. Finally, the Court rejected Ms. Saunders’ argument that the Assembly’s Code of Conduct operated to remove or to limit the Assembly’s privilege to discipline a member. The Court concluded the Nunatsiavut Assembly Act, not the Code of Conduct, is the Assembly’s organizing statute. Furthermore, accepting that it is possible for a statute to circumscribe or remove a category of parliamentary privilege, the Court confirmed that clear wording is necessary to do so and that the Code of Conduct lacks such clear wording.

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Please contact your McInnes Cooper lawyer or any member of our Aboriginal & Indigenous Law Team @ McInnes Cooper to discuss parliamentary privilege of Indigenous self-governments.