In Mikisew Cree First Nation v Canada, 2018 SCC 40, a majority of Canada’s top Court said no aspect of the law-making process triggers the Crown’s duty to consult with Aboriginal peoples.
A unanimous Court agreed that the Federal Court lacked jurisdiction to judicially review actions of federal Ministers exercising legislative power. However, the Court split (7:2) on the issue of whether the duty to consult can ever be triggered during the development of legislation, and (5:4) on whether the honour of the Crown doctrine applies to the law-making process.
Mikisew Cree First Nation challenged federal omnibus legislation introduced in 2012 that significantly altered environmental protection legislation. Mikisew, a signatory to Treaty 8, said its rights to hunt, fish and trap would be adversely impacted by the omnibus legislation. The federal government did not consult Mikisew on the omnibus bills at any stage of their development or prior to their enactment.
The nine-member panel of judges wrote four sets of reasons. A majority of the Court (7:2) agreed there is no duty to consult during the preparation of legislation, or the law-making process.
According to Karakatsanis J., “the duty to consult doctrine is ‘ill-suited’ to legislative action.” Two constitutional principles – the separation of powers and parliamentary sovereignty – make courts reluctant to supervise the law-making process. She reasoned that the expansion of the duty to consult to include the development of legislation would obligate the judiciary to step outside its established role and threaten the balance between the separate branches of government.
Importantly, while the duty to consult will not apply to the law-making process, it will apply to the adoption of regulations. Additionally, it may be inconsistent with the constitutional rights of Aboriginal peoples for the government to develop legislation in a way that removes future Crown conduct that would otherwise trigger a duty to consult.
The Court emphasized that the decision is not meant to suggest that Aboriginal peoples will be without a remedy when legislation undermines Aboriginal and Treaty rights.
Four members of the Court noted that Aboriginal peoples can still challenge the Constitutionality of legislation (after it is enacted) that unjustifiably infringes Treaty right or Aboriginal rights. Five members of the Court confirmed that Parliamentary sovereignty cannot override the Crown’s duty to honourably deal with Aboriginal peoples. Other means to protect Aboriginal and Treaty rights may be recognized in the future based on the doctrine of the honour of the Crown. Justice Karakatsanis makes it clear this decision does not absolve the Crown of its obligation to conduct itself honourably.
- From the development of legislation to its enactment, the government has no duty to consult with Aboriginal peoples;
- The constitutional principles of parliamentary sovereignty and the separation of powers between the legislative, executive and judicial branches of government limit courts’ ability to interfere with the law-making process;
- The duty to consult with Aboriginal peoples still applies to the adoption of regulations, because regulations are made by Cabinet (the executive), not the legislature;
- The duty to consult will also apply to the enforcement of Treaty provisions, where those provisions expressly require pre-legislative consultation; and
- The case leaves the door open for the Court to develop future doctrines, grounded in the honour of the Crown, to protect Treaty and Aboriginal rights in the context of the development of legislation.