The Supreme Court of Canada (SCC, or the Court) has ruled that there is no duty to consult Indigenous groups at any stage of the law-making process. 1 This is an important ruling as the recognition of a justiciable duty to consult in the legislative process would have had very significant implications for the ability of federal, provincial, and territorial governments to pass laws in a timely way. However, this finding does not mean that legislation is immune from judicial challenge by Indigenous groups. Laws can still be struck down once enacted if they infringe established Aboriginal or treaty rights or Charter rights. The SCC’s split ruling with four different judgments also creates uncertainty about whether legislation can be challenged once enacted on additional grounds, specifically a breach of the honour of the Crown. While this suggestion was raised in a minority concurring decision, it will likely lead to further litigation on this point. Background on the Decision
This appeal arose from a judicial review by the Mikisew Cree First Nation relating to the former Conservative government’s introduction of omnibus legislation amending several Canadian environmental and regulatory laws in 2012. The Mikisew Cree were not consulted on the amendments. While the Crown’s duty to consult has to date been limited to executive action, the appellant argued that the duty to consult was triggered because the Ministers were acting in an executive (rather than legislative) capacity in developing and introducing legislation and the amendments reduced federal regulatory oversight on projects that may affect their treaty rights to hunt, fish, and trap. They sought various declarations that the respondent Ministers had a duty to consult them regarding the development and introduction of the omnibus bills.
At first instance, the Federal Court held that the duty to consult was triggered, but that it only arose after the bills were introduced into Parliament, due to the separation of powers and the principle of parliamentary sovereignty. The Federal Court of Appeal set aside that decision, finding that the Federal Court did not have jurisdiction to supervise or impose a duty to consult in the legislative process and that such duty would unduly interfere with Parliament’s processes and fetter its law-making capacity, contrary to parliamentary sovereignty. No Duty to Consult in the Legislative Process
While there were four different judgements, the SCC was unanimous in dismissing the Mikisew Cree’s appeal. All nine judges agreed that the Federal Court lacked jurisdiction over the Mikisew Cree’s claim because the Federal Courts Act does not allow for judicial review of parliamentary activities and actions of Ministers in the parliamentary process. The Court, however, split (7-2) on whether legislation could be challenged, once enacted, for a failure to consult Indigenous groups.
The majority of the judges in three separate concurring decisions (by Karakatsanis, Brown, and Rowe JJ.) ruled that there could be no duty to consult at any stage of the legislative process, including Royal Assent. In other words, even once enacted, legislation cannot not be challenged on the basis of a failure to consult Indigenous groups whose Aboriginal or treaty rights may be adversely affected by the legislation. While they each provided separate reasons, the three judges found that recognizing a duty to consult at any stage in the legislative process would be contrary to parliamentary sovereignty, parliamentary privilege, and/or the separation of powers which protect the law-making process from judicial oversight.
The judges in the majority also acknowledged numerous practical concerns that would arise if a duty to consult were imposed upon the legislative process. Justice Rowe (Moldaver and Côté JJ, concurring) stated that imposing a duty to […]
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