On October 11, 2018, in a highly anticipated decision 1 , the Supreme Court of Canada unanimously dismissed an appeal brought by the Mikisew Cree First Nation (the " Mikisew "), concluding that the Federal Court did not have jurisdiction to hear the application for judicial review of measures taken by ministers exercising legislative powers, as they are not then acting as a "federal board, commission or other tribunal" whose actions are subject to judicial review. The Supreme Court concluded that no provision of the Federal Courts Act allowed the Federal Court to scrutinize Parliament’s legislative process. The Court also concluded that the Crown’s duty to consult First Nations does not apply to the legislative process. Context of the decision
The Mikisew filed an application for judicial review of two omnibus bills introduced in 2012 by the Conservative government that would have significant effects on Canada’s environmental protection regime and potential to negatively affect their rights to hunt, trap and fish under Treaty No. 8. The Mikisew were not consulted about this draft legislation. They maintained that by developing and enacting legislation affecting their Aboriginal rights enshrined by treaty, the federal ministers involved were acting in an executive capacity rather than pursuant to the legislative powers conferred on them by the Constitution Act, 1867 .
The Federal Court concluded that the introduction of the omnibus bills triggered the obligation to consult the Mikisew. On appeal, a majority of the Federal Court of Appeal held that judicial review of a legislative measure is not allowed by the Federal Courts Act and that ministers are not subject to judicial review when developing policy. Refusal to apply the duty to consult to the legislative process
In a judgment including four sets of concurring reasons, the Supreme Court nevertheless agreed by a margin of seven to two that the duty to consult First Nations does not apply to the legislative process, including royal assent.
In the reasons drafted by Justice Karakatsanis (Chief Justice Wagner and Justice Gascon concurring), her analysis begins with an exhaustive review of the purpose and dynamic between the duty to consult and the principle of the honour of the Crown from which it derives. By virtue of the principles of separation of powers and parliamentary sovereignty, she concludes that actions of federal ministers during the legislative process are pursuant to the powers conferred on them by the Constitution Act, 1867 and not pursuant to their statutory powers, thus mandating judicial non-incursion into the legislative process:
 Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature, even if such a duty were only enforced post-enactment. The duty to consult jurisprudence has developed a spectrum of consultation requirements that fit in the context of administrative decision-making processes. Directly transposing such executive requirements into the legislative context would be an inappropriate constraint on legislatures’ ability to control their own processes.
While arriving at the same conclusions as Justice Karakatsanis, Justice Brown uses a different analytical approach, and, while doing so, strongly criticizes his colleague for the judicial uncertainty her reasons entail. For Justice Karakatsanis leaves unanswered the question whether the principle of the honour of the Crown would allow a statute – otherwise validly adopted and immune from challenge on the basis of section 35 of the Constitution Act, 1982 and the Sparrow 2 test – "not consistent with [the honour of the Crown]" because of an infringement of that principle by the legislature. She adds that in such a case, other relief or doctrines may be developed to remedy this.
Justice Brown, on […]
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