The Federal Court of Appeal recently released a significant decision that limits the scope of Crown conduct that may trigger itsduty to consult with Aboriginal peoples and reinforces parliamentary privilege. In Courtoreille v. Canada, released on December 7, 2016, the Federal Court of Appeal concluded that the entire legislative process – from the discussion of policy options to the introduction and passage of legislation – cannot trigger the duty to consult regardless of whether the legislation at issue has the potential to adversely impact asserted or established Aboriginal or treaty rights.

This decision overturned a previous ruling by the Federal Court (2014 FC 1244) which held that the federal government had a duty to consult the Mikisew Cree following the introduction of the contentious Omnibus legislation (Bills C-38 and C-45) in 2012 that made changes to Canada’s environmental assessment regime through CEAA 2012, as well as related environmental legislation including the Fisheries Act, Species at Risk Act, and the Navigable Waters Protection Act (now Navigation Protection Act). This Omnibus legislation sought to streamline certain regulatory processes and reduce the number of projects that were subject to federal environmental assessment. At the Federal Court level, the Mikisew Cree argued that the duty to consult was triggered by the development and introduction of the new legislation because it reduced federal regulatory oversight on works or projects that may affect the Mikisew Cree’s treaty rights to hunt, fish, and trap. The Federal Court found that the Crown did have a duty to consult the Mikisew Cree – but only after the two bills were introduced in Parliament, not before. The scope of the duty was limited to providing notice and a reasonable opportunity to make submissions, and the relief granted by the Federal Court was solely declaratory in nature since the Omnibus Bills had already passed into law

In overturning the Federal Court decision, Justice De Montigny of the Federal Court of Appeal concluded that the legislative actions at issue were immune from judicial review, stating that “[i]f there is one principle that is beyond any doubt, it is that courts will not supervise the legislative process and will provide no relief until a bill has been enacted.” (at para. 59). Even if the actions were not immune from judicial review, Justice De Montigny held that it would be an undue interference with Parliament’s process and sovereignty for the courts to impose a duty to consult in the legislative process. He held that requiring a duty to consult at any stage of the legislative process would be “impractical and cumbersome”, “potentially grind the legislative process to a halt”, and would “fetter ministers and other members of Parliament in their law-making capacity” (at para. 60).

Justice De Montigny noted that this obviously does not prevent governments from consulting with Aboriginal groups on legislation as a matter of good public policy and politics, nor does it prevent Aboriginal groups from advancing their interests through lobbying or submissions to parliamentary committees (at paras. 61-62). Justice De Montigny further acknowledged that consultation and accommodation may be necessary when carrying out statutory regimes, during which time strategic planning decisions may affect Aboriginal rights and interests (at para. 63).

In concurring minority reasons, Justice Pelletier decided the case more narrowly, holding that the duty to consult is not triggered by “legislation of general application whose effects are not specific to particular Aboriginal peoples or to the territories in which they have or claim an interest”. Justice Pelletier’s reasons suggest that this more qualified ruling took into consideration the risk of governments legislating around the duty to consult for a specific undertaking:

Putting the matter another way, the duty to consult would undoubtedly be triggered by the executive’s approval of a project which adversely affected a First Nation’s interest in a given territory. Can it be said that the duty to consult would not be triggered if the same project were approved and set in motion in a special law passed for that purpose? While this is not the case we have to decide, it does highlight the point that the argument that the legislative process is indivisible, from policy development to vice-regal approval, may be problematic in other circumstances.

It remains to be seen whether the Mikisew Cree will seek leave to appeal to the Supreme Court of Canada, which expressly left the issue of whether government conduct for the purposes of the duty to consult includes legislative action “to another day” in Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43. This decision is unlikely to significantly alter the current varying and case-by-case approaches of the federal and provincial governments when it comes to consulting Aboriginal groups regarding legislation. However, it could have had significant implications for the legislative process if the initial ruling was upheld or if the Court of Appeal went further and found that there was a duty to consult prior to the introduction of legislation. It could have also created further regulatory uncertainty and delay for resource development proponents if there was a risk that future legislative reforms to provincial and federal environmental assessment and energy regulation processes (including federal legislative reforms anticipated later this year) could be struck down for a failure to meet the duty to consult.

This decision will likely be seen as a setback for the many Aboriginal groups across the country that have been seeking much greater consultation and collaboration than the status quo approaches to the development of legislation in Canada.