On May 18, 2017, the Supreme Court of Canada (SCC) granted an application by the Mikisew Cree First Nation for leave to appeal a decision of the Federal Court of Appeal. The decision of the Court of Appeal confirmed that that the federal government did not owe a duty to consult when it developed and implemented changes to environmental legislation through two omnibus bills (Bills C-38 and C-45, collectively, the “Omnibus Bills”). Read our analysis of the decision of the Federal Court of Appeal.

Background

In 2012, Canada introduced and passed the Omnibus Bills, which changed a number of environmental laws. Chief Steve Courtoreille, on behalf of the Mikisew Cree First Nation – a signatory to Treaty No. 8 – commenced a judicial review application seeking a declaration that the federal Ministers owed them a duty to consult before the Omnibus Bills were presented to Parliament.

At the trial level, the Federal Court held that the Federal Government owed a duty to consult when it implemented changes to environmental legislation through the Omnibus Bills and granted declaratory relief to that effect, but declined to interfere in the legislative process due to Parliamentary supremacy.

The Federal Court of Appeal disagreed with the declaratory relief granted and allowed Canada’s appeal. The majority decision found that the Federal Court had no jurisdiction to judicially review the federal government's actions prior to the introduction of the omnibus bills into Parliament. The concurring decision found the duty to consult had not been triggered because the Omnibus Bills did not give rise to specific impacts for any particular Aboriginal group or territory, but left open the possibility that the duty to consult could be triggered on different facts.

Conclusion

In choosing to hear the appeal, the SCC will have the chance to clarify whether the duty to consult includes legislative action. The SCC could have decided this issue in Rio Tinto[1] but left the decision for another day:

[44] … We leave for another day the question of whether government conduct [as a part of the consultation analysis] includes legislative action …

The implications of this decision for projects that have undergone environmental review under CEAA, 2012 is not known but may be significant given the the number of authorizations and licences that rely on the challenged legislation, as well as the Federal Government’s ongoing review of key environmental and regulatory legislation and processes. The decision in the case could have far ranging consequences for legislative authority in Canada, and those that rely on that legislative authority.