Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40– Constitutional law — Aboriginal peoples — Treaty rights — Crown — Duty to consult
On appeal from a judgment of the Federal Court of Appeal (2016 FCA 311) setting aside a declaration of Hughes J. (2014 FC 1244).
In April 2012, two pieces of omnibus legislation with significant effects on Canada's environmental protection regime were introduced into Parliament. The Mikisew Cree First Nation was not consulted on either of these omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8. The reviewing judge granted a declaration to the effect that the duty to consult was triggered and that the Mikisew were entitled to notice of the relevant provisions of the bills, as well as an opportunity to make submissions. On appeal, a majority of the Federal Court of Appeal concluded that the reviewing judge erred by conducting a judicial review of legislative action contrary to the Federal Courts Act. The majority held that when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review. It deemed the reviewing judge's decision to be inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. The Mikisew appealed.
Held (9-0): The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis and Gascon JJ.: The Federal Court lacked jurisdiction to consider the Mikisew's application for judicial review. For the Federal Court to have jurisdiction over a claim, it must have a statutory grant of jurisdiction. Section 17(1) of the Federal Courts Act provides that the Federal Court has concurrent original jurisdiction where relief is claimed against the Crown, which the Actdefines as Her Majesty in right of Canada. However, this definition does not extend to executive actors when they are exercising legislative power. In this case, the Mikisew challenge actions which are uniformly legislative in character, therefore, their application is not against the Crown in its executive capacity. In addition, ss. 18 and 18.1 of the Act only grant the Federal Court jurisdiction to judicially review action taken by a "federal board, commission or other tribunal", defined in s. 2(1) of the Act as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown. Section 2(2) specifies that the Senate, the House of Commons, or any committee or member of either House is not included in this definition. Ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under Part IV of the Constitution Act, 1867. As such, when developing legislation, they do not act as a federal board, commission or other tribunal and their actions are immune from judicial review. Accordingly, the Federal Court was not validly seized of the Mikisew's application for judicial review in this case.
With respect to the duty to consult, the development of legislation by ministers is legislative action that does not trigger this duty. The duty to consult is an obligation that flows from the honour of the Crown, a foundational principle of Aboriginal law which governs the relationship between the Crown and Aboriginal peoples. This duty requires the Crown to consult Aboriginal peoples before taking action that may adversely affect their asserted or established rights under s. 35 of the Constitution Act, 1982 and ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s. 35 rights. Although the duty to consult has been recognized in a variety of contexts, Crown conduct sufficient to trigger the duty has only been found to include executive action or action taken on behalf of the executive.
The duty to consult doctrine is ill‑suited for legislative action. It is rarely appropriate for courts to scrutinize the law‑making process, which includes the development of legislation by ministers. Longstanding constitutional principles underlie this reluctance to supervise the law‑making process. The separation of powers is an essential feature of Canada's Constitution. It recognizes that each branch of government will be unable to fulfill its role if it is unduly interfered with by the others. Recognizing that a duty to consult applies during the law‑making process may require courts to improperly trespass onto the legislature's domain. Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. Recognizing that the elected legislature has specific consultation obligations may constrain it. Parliamentary privilege also generally prevents courts from enforcing procedural constraints on the parliamentary process. Applying the duty to consult doctrine during the law‑making process would lead to significant judicial incursion into the workings of the legislature.
Furthermore, the administrative law remedies normally available for breach of a duty to consult would invite inappropriate judicial intervention into the legislature's domain, as the duty would require the judiciary to directly interfere with the development of legislation. Applying a duty to consult to the development of legislation by ministers also raises practical concerns. If changes are made to a proposed bill to address concerns raised during consultation, these changes could later be undone by Parliament, as it is free to amend the proposed law. This may limit the possibility of meaningful accommodation. Additionally, private member bills would not trigger the duty, rendering the approach incongruous. Moreover, in the long chain of events contributing to the development of legislation, disentangling what steps the duty to consult applies to (because they are executive) and what actions are immune (because they are parliamentary) would be an enormously difficult task.
However, when legislation undermines s. 35 rights, Aboriginal groups are not left without a remedy. The duty to consult is not the only means to give effect to the honour of the Crown. Simply because the duty to consult doctrine, as it has evolved to regulate executive conduct, is inapplicable in the legislative sphere, does not mean the Crown is absolved of its obligation to conduct itself honourably. While an Aboriginal group will not be able to challenge legislation on the basis that the legislature had failed to fulfill the duty to consult, other protections may well be recognized in future cases when Aboriginal or treaty rights may be adversely affected by legislation, such as declaratory relief.
Per Abella and Martin JJ.: There is agreement with Karakatsanis J. that the appeal should be dismissed on the grounds that judicial review under the Federal Courts Act is not available for the actions of federal ministers in the parliamentary process.
However, there is disagreement with respect to the duty to consult. The enactment of legislation with the potential to adversely affect rights protected by s. 35 of the Constitution Act, 1982 gives rise to a duty to consult, and legislation enacted in breach of that duty may be challenged directly for relief. The honour of the Crown governs the relationship between the government of Canada and Indigenous peoples. This obligation of honour gives rise to a duty to consult that applies to all contemplated government conduct with the potential to adversely impact asserted or established Aboriginal and treaty rights, including legislative action.
The honour of the Crown is always at stake in its dealings with Indigenous peoples, whether through the exercise of legislative power or executive authority. It is a constitutional imperative giving rise to obligations on the Crown which are enforced by the courts. When the government contemplates conduct that might adversely affect Aboriginal or treaty rights, the honour of the Crown gives rise to a duty to consult and accommodate. This duty is more than just a means of upholding the honour of the Crown. The question is not whether a duty to consult is appropriate in the circumstances, but whether the decision is one to which the duty to consult applies.
Because the honour of the Crown infuses the entirety of the government's relationship with Indigenous peoples, the duty to consult must apply to all exercises of authority which are subject to scrutiny under s. 35. This includes the enactment of legislation. This conclusion flows from the jurisprudential development of the duty to consult from an aspect of the infringement and justification analysis in R. v. Sparrow,  1 S.C.R. 1075, to an independent obligation in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  S.C.R. 511. No longer confined to the justification context, the duty to consult now forms part of the essential legal framework of Aboriginal law, and requires consultation wherever the potential for adverse effects on claimed or established s. 35 rights arises. This approach recognizes that the legislative sphere is not excluded from the honour of the Crown. Endorsing such a void in the honour of the Crown would create a corresponding gap in the s. 35 framework, leaving Aboriginal rights‑holders vulnerable to the same government objectives carried out through legislative, rather than executive, action.
Although parliamentary sovereignty and parliamentary privilege are central to ensuring that the legislative branch of government is able to do its work without undue interference, these concepts cannot displace the honour of the Crown. The issues in this appeal require this Court to reconcile, not choose between, protecting the legislative process from judicial interference and protecting Aboriginal rights from the legislative process. The right of Aboriginal groups to be consulted on decisions that may adversely affect their interests is not merely political, but a legal right with constitutional force. Cases which advocate against intrusion into the parliamentary process must therefore be read in the context of a duty that is not only a constitutional imperative, but a recognition of the limits of Crown sovereignty itself. Parliamentary sovereignty should not be interpreted in a way that eradicates obligations under the honour of the Crown. Like all constitutional principles, parliamentary sovereignty must be balanced against other aspects of the constitutional order, including the duty to consult.
Although parliamentary sovereignty cannot displace the honour of the Crown, its force as a constitutional principle must be given adequate weight to achieve an appropriate balance between these concepts. The flexibility inherent in the duty to consult doctrine should be used to account for the wider area of discretion that legislatures must be afforded in the legislative context. Since the content of the duty to consult depends heavily on the circumstances, there is no reason why the unique challenges raised in the legislative sphere cannot be addressed by the spectrum of consultation and accommodation duties. Further, not every legislative effort triggers the duty to consult — it is triggered only where the Crown, with knowledge of the potential existence of the Aboriginal right or title in question, contemplates enacting legislation that might adversely affect it.
The procedure and scope of remedies available where the government breaches its duty to consult in the law‑making process is also limited by the constitutional balance between the judiciary and the legislature. Institutional constraints in the legislative context require that applicants challenge existing legislation. It would unduly interfere with the legislative process to allow direct challenges to a legislature's procedure prior to the enactment of legislation. While it is not the role of the courts to dictate the procedures legislatures adopt, they may consider whether the chosen process accords with the special relationship between the Crown and Indigenous peoples. Challenging existing legislation on procedural grounds is not a novel proposition in Canadian law.
A successful Haida Nation challenge will not, however, necessarily invalidate legislation. The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively, and should not replace the Sparrow infringement and justification test or become a means by which legislation is routinely struck down. Without ruling out the possibility that in certain cases legislation enacted in breach of the duty to consult could be struck down, a declaration will generally be the appropriate remedy. This allows courts to shape the legal framework while respecting the constitutional role of another branch of government to act within those constraints. Therefore, an Indigenous group will be entitled to declaratory relief where the Crown has failed to consult during the process leading to the enactment of legislation that could adversely affect its interests.
Per Brown J.: There is agreement that the appeal should be dismissed on the grounds that the Federal Court did not have jurisdiction to consider the application for judicial review.
Even absent this jurisdictional bar, however, the separation of powers, parliamentary privilege, the scope of judicial review properly understood and the existing jurisprudence on the duty to consult all lead to the conclusion that the Mikisew's application for judicial review cannot succeed. The entire law‑making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference. The making of policy choices is a legislative function, while the implementation and administration of those choices is an executive function. This precludes judicial imposition of a duty to consult in the course of the law‑making process.
The formulation and introduction of bills is protected from judicial review by the separation of powers. In order for each branch of the Canadian state — legislative, executive and judiciary — to fulfill its role, it must not be unduly interfered with by the others. Ministers of the Crown play an essential role in, and are an integral part of, the legislative process. Their dual membership in the executive and legislative branches of the Canadian state does not render their corresponding executive and legislative roles indistinguishable for the purposes of judicial review. In the instant case, federal ministers took a set of policy decisions that eventually led to the drafting of a legislative proposal, and then to the formulation and introduction of the omnibus bills in the House of Commons. All of these actions form part of the legislative process of introducing bills in Parliament and were taken by the ministers acting in a legislative capacity.
The formulation and introduction of bills is also protected from judicial review by parliamentary privilege, which is understood as freedom from interference with the parliamentary work of a Member of Parliament. Parliamentary privilege is essential to allowing Parliament to perform its constitutional functions by giving it the right to exercise unfettered freedom in the formulation, tabling, amendment, and passage of legislation. While parliamentary privilege operates within certain constraints imposed by the Constitution, the duty to consult is distinct from the constitutionally mandated manner and form requirements with which Parliament must comply in order to enact valid legislation. The only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive royal assent. While the Constitution's status as the supreme law of Canada operates to render of no force and effect enacted legislation that is inconsistent with its provisions, it does not empower plaintiffs to override parliamentary privilege.
The development, introduction, consideration and enactment of bills is not Crown conduct which triggers the duty to consult. Crown conduct triggering this duty must be understood as excluding the parliamentary functions of the Canadian state. The steps taken as part of the parliamentary process of law‑making, including royal assent, are not the vehicle through which the Crown acts. The exercise of Crown authority in enacting legislation (assenting, refusing assent to, or reserving legislative or parliamentary bills) is legislative. It is not an instance of Crown conduct — that is, executive conduct — which can trigger the duty to consult. The Crown does not enact legislation, Parliament does.
Consequently, judicial review of the legislative process, including post‑facto review of the process of legislative enactment, for adherence to s. 35 of the Constitution Act, 1982,and for consistency with the honour of the Crown, is unconstitutional. That this is so, should not, however, be seen to diminish the value and wisdom of consulting Indigenous peoples prior to enacting legislation that has the potential to adversely impact the exercise of Aboriginal or treaty rights. Consultation during the legislative process is an important consideration in the justification analysis under s. 35. But the absence or inadequacy of consultation may be considered only once the legislation at issue has been enacted, and then, only in respect of a challenge under s. 35 to the substance or the effects of such enacted legislation, as opposed to a challenge to the legislative process.
Raising the possibility that legislation which adversely affects s. 35 rights might be declared inconsistent with the honour of the Crown undercuts the same principles of separation of powers and parliamentary privilege that lead to the conclusion that imposing the duty to consult would be inappropriate in the circumstances of this case. Further, this would cast the law into considerable uncertainty for all who rely upon the efficacy of validly enacted and constitutionally compliant laws.
Per Moldaver, Côté and Rowe JJ.: There is agreement with Brown J.In addition, the fact that the duty to consult has not been recognized as a procedural requirement in the legislative process does not leave Aboriginal claimants without effective means to have their rights, which are protected under s. 35 of the Constitution Act, 1982,vindicated by the courts. When legislation has been adopted, those who assert that the effect of the legislation is to infringe s. 35 rights have their remedies under the infringement and justification framework set out in R. v. Sparrow,  1 S.C.R. 1075. Those who assert that government decisions made pursuant to the legislation's authority will adversely affect their claims can rely on the duty to consult first recognized in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73,  S.C.R. 511. Where new situations arise that require the adaptation or extension of the existing jurisprudence, the courts provide a means for further development of the law. No such requirement has been shown on the facts of this case. The current jurisprudence provides for protection and vindication of Aboriginal rights while upholding the constitutional principles of parliamentary sovereignty and the separation of powers.
Furthermore, recognizing a constitutionally mandated duty to consult during the process of preparing legislation would be highly disruptive to the carrying out of that work. The preparation of legislation is not a simple process. Rather, it is a highly complex process involving multiple actors across government. Imposing a duty to consult at this stage could effectively grind the day‑to‑day internal operation of government to a halt. What is now complex and difficult could become drawn out and dysfunctional.
Finally, an additional and serious consequence of recognizing a duty to consult during the law‑making process would be the interventionist role that the courts would be called upon to play in order to supervise interactions between Indigenous parties and those preparing legislation for consideration by Parliament and by provincial legislatures. If a duty to consult were to be imposed on the legislative process, disputes would arise about the way that this obligation would be fulfilled. Affected parties would inevitably turn to the courts, who would be drawn into a supervisory role as to the operation of a duty to consult in the preparation of legislation. The courts are ill‑equipped to deal with the procedural complexities of the legislative process. If a legislature chooses to participate in consultation with Indigenous peoples, the stage at which such consultation takes place is a matter of discretion. Interference by a court in the exercise of that discretion would offend the separation of powers. Engaging the courts in regulating the exercise by Parliament and legislatures of their powers and privileges would be a profound change in Canada's system of government.
Reasons for judgment: Karakatsanis J. (Wagner C.J. and Gascon J. concurring) Concurring Reasons: Abella J. (Martin J. concurring) Concurring Reasons: Brown J. Concurring Reasons: Rowe J. (Moldaver and Côté JJ. concurring)
Neutral Citation: 2018 SCC 40
Docket Number: 37441