On May 19, 2017, the Supreme Court of Canada agreed to hear the appeal of the Federal Court of Appeal’s 2016 decision in Canada v Mikisew Cree First Nation. The issue: whether the federal Crown’s constitutional duty to consult affected Aboriginal Peoples applies before legislation is enacted (e.g., while developing and considering policy and legislative objectives, drafting bills and introducing them in the legislature).

A long line of court decisions solidly affirm the Crown owes Aboriginal Peoples a duty to consult when contemplating administrative action under enacted legislation that may adversely impact their Aboriginal or treaty rights. But courts have, so far, refrained from finding that duty applies at any point in the legislative process. To the contrary, courts have confirmed the constitution requires courts allow legislators to fulfil their role, and only “come in to the picture” after legislation is enacted: although the duty to consult Aboriginal Peoples flows from constitutional obligations, judicial intervention in the legislative process must be restrained based on other constitutional principles that protect the sovereignty of legislators in fulfilling their role from the judiciary’s intervening power. For the Mikisew to succeed, the Supreme Court of Canada must depart from this long-established approach (and the Appeal Court’s clear affirmation in the Mikisew case that the duty to consult is not triggered at any time in the legislative process) and perhaps even open the door for greater judicial intervention than that which the trial judge in the Mikisew case granted, such as injunctions (prohibiting the legislators from moving any further with prospective legislation or prohibiting Ministers from taking any further steps or action under enacted legislation). And this would carry broad implications – for law-makers, Aboriginal peoples and industry stakeholders – some of which the Appeal Court noted in its reasons:

• Stifling the legislature. The law-making process requires flexibility; the application of the duty to consult to this process could constrain and fetter the will and imagination of the legislators elected to legislate, eroding or even stifling the Parliamentary sovereignty and privilege that allows legislators to freely legislate without the judiciary’s prying eyes or hands. This means some legislation, for example affecting the natural resource and construction industries, might never even see the light of day.

• Delay. It would inevitably cause delay or a general reduction in the legislature’s productivity. The Appeal Court noted it will be an impractical, inefficient and cumbersome process for legislators to carry out consultation. It will be problematic for legislators to parse out the specific implications that legislation might have on various First Nations of wide-ranging circumstances, particularly in the case of legislation that will have general application (legislation that applies to everyone of the same class, such as the Canadian Environmental Assessment Act, 2012). Delays cost time and money, impacting all stakeholders: the legislators, the affected Aboriginal Peoples, and any industry participants that might be awaiting legislation to act on projects or otherwise.

• Unintended Consequences. Rather than achieving the goals of reconciling Aboriginal rights and interests with broader Canadian society, triggering the duty to consult in the legislative process may compromise legislative reform. Forcing consultation onto legislators during the legislative process could diminish the “good politics” motivation to consult on the impacts of legislation on Aboriginal and treaty rights that should naturally infuse and guide the legislative process and may, in fact, have the opposite effect. Loss of this informal, pre-enactment consultation could lead legislators to “miss” adverse impacts of legislation before enactment, and could result in more constitutional challenges to legislation – and that increases uncertainty, time and expense for all stakeholders.

• The Best People. Responsibility for consultation will shift, at least in part, to legislators and away from administrative actors – who may be far better suited to understand and appreciate how to implement legislation and make decisions under it to properly account for Aboriginal concerns, that could also lead to “misses”, more legal challenges… and more uncertainty, time and expense for all stakeholders.

• Provincial Legislatures. Technically, the Supreme Court of Canada will only decide whether the federal Crown’s duty to consult applies during the pre-enactment legislative process; practically, however, since the provincial Crowns also owe Aboriginal Peoples a duty to consult, the Court’s decision will also apply to provincial law-makers – and that’s a lot of legislation that will be impacted.

Canada v Mikisew Cree First Nation arises from two controversial omnibus bills the former federal government introduced in 2012 (Bills C-38 and C-45). The omnibus bills repealed and replaced the Canadian Environmental Assessment Act and amended several other environmental and natural resources-related statutes that affected fish habitats and a number of waterways. The federal Crown didn’t consult the Mikisew before it introduced the omnibus bills or during the Parliamentary process leading to their enactment. The Mikisew alleged the omnibus bills adversely affected their Treaty rights, so the Crown had a duty to consult with them during the development of the legislation, and before and upon its introduction in Parliament, and breached that duty. The Mikisew asked the court to issue a declaration to this effect (effectively requiring the legislative branch to consult with Aboriginal Peoples before introducing a bill in Parliament) and what essentially amounted to an injunction (a court order that Ministers not take any further steps or action that would reduce, remove, or limit Canada’s role in any environmental assessment).

Trial Success for Mikisew. At trial, the Mikisew substantially succeeded:

• As a preliminary matter, the Federal Courts Act (which limits judicial review to decisions or orders made by a “federal board, commission or other tribunal”) permitted judicial review in the case.

• The legislators owed the Mikisew a duty to consult while it was preparing and introducing the omnibus bills: steps ministers take before introducing a bill in Parliament is Crown conduct that can give rise to the duty to consult.

• “Intervening” in the legislative process, such as by granting an injunction, would compromise parliamentary sovereignty. But a declaratory order that the Crown had a duty to consult with the Mikisew when it introduced each omnibus bill in Parliament balances the Crown’s constitutional duty to consult and Parliament’s sovereignty: although the omnibus bills were already enacted making a declaratory order arguably pointless, it would have practical value “for the parties’ future obligations”.

Appeal Success for Crown. The Crown appealed to the Federal Court of Appeal – which firmly rebuked the trial judge’s decision:

• The Federal Courts Act did not permit judicial review here: legislative decisions are outside the Act’s purview.

• The trial court’s declaration is inconsistent with its conclusion that a court can’t intervene in the legislative process. There can be no judicial intervention, including any sort of declaratory order, respecting any point of the legislative process: “[i]f there is one principle that is beyond any doubt, it is that courts will not supervise the legislative process and will provide no relief until a bill has been enacted”. Imposing a duty to consult at any stage of the law-making process would result in a restrain on Parliamentary members and slow or potentially halt the legislative process.

• A legislative regime that doesn’t allow for consultation isn’t immune from constitutional challenge, and its “good politics” for legislators to engage Aboriginal groups on legislative initiatives. If a decision is challenged on the basis it derives from policy development that didn’t sufficiently account for Aboriginal concerns, one factor in determining whether any infringement on an Aboriginal or treaty right is justified will be whether consultation occurred before the legislation was adopted – but any such judicial scrutiny will only “come in to the picture” after the legislators have completed their job and the legislation enacted.

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Please contact your McInnes Cooper lawyer or any member of the Aboriginal Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

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