May 26, 2017
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:
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 The omnibus bills repealed and replaced the Canadian Environmental Assessment Act and amended several other environmental and natural resources-related statutes that affected fish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:
Appeal Success for Crown. The Crown appealed to the Federal Court of Appeal – which firmly rebuked the trial judge’s decision:
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