Supreme Court

Aboriginal and Indigenous Law

Constitutional issues


Imposing consultation obligations on elected legislature might constrain it in pursuing its mandate

Duty to consult. The ancestors of First Nation entered into Treaty No. 8 ceding territory to Crown in exchange for certain guarantees, including right to hunt, trap, and fish. Parliament enacted legislation affecting Canada’s environmental laws and potentially impacting First Nation’s rights without consulting First Nation at any stage. Trial judge allowed First Nation’s application for judicial review, finding Ministers had duty to give First Nation notice and reasonable opportunity to make submissions on introduction of bills. Federal Court of Appeal allowed Ministers’ appeal, finding importing duty to consult into legislative process offended separation of powers doctrine and principle of parliamentary privilege and that judicial review was only available in respect to decisions of federal board, commission or other tribunal. First Nation appealed. Appeal dismissed. Process of developing, passing and enacting legislation was not Crown conduct triggering duty to consult and duty was not to be extended to legislative process. In duty to consult context, Crown conduct only included executive action or action taken on behalf of executive. Federal Court only had jurisdiction to judicially review actions of federal board, commission or other tribunal, not parliamentary activities. When developing legislation, cabinet and ministers act pursuant to powers under Part IV of Constitution Act, 1867, not statutory powers. First Nation’s treaty rights were protected under s. 35 of Constitution Act, and Crown’s dealings with those rights engaged honour of Crown, but that did not mean honour gave rise to justiciable duty to consult when ministers developed legislation potentially adversely affecting treaty rights. Parliamentary sovereignty mandated that legislature could make or unmake any law it wished, within confines of its constitutional authority. Imposing consultation obligations on elected legislature might constrain it in pursuing its mandate, undermine its ability to act as voice of electorate, and lead to significant judicial incursion into workings of legislature. Duty to consult was not only means to give effect to honour of Crown when rights might be adversely affected by legislation, conclusions did not apply to development of subordinate legislation which was executive conduct, and conclusions did not affect enforceability of treaty provisions implemented through legislation that explicitly required pre-legislative consultation. Crown was not absolved of duty to act honourably and application of s. 35 was not limited.

Mikisew Cree First Nation v. Canada (Governor General in Council) (2018), 2018 CarswellNat 5579, 2018 CarswellNat 5580, 2018 SCC 40, 2018 CSC 40, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2016), 2016 CarswellNat 6599, 2016 CarswellNat 9957, 2016 FCA 311, 2016 CAF 311, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and Yves de Montigny J.A. (F.C.A.).

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