Supreme Court of Canada rules Crown has no duty to consult First Nation regarding law-making process.
Thursday, October 11, 2018 - Filed in: Court Cases
"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."
The S.C.C. held (9:0) (with reasons for judgment by Karakatsanis J. [Wagner C.J. and Gascon J. concurring]. As well as separate concurring reasons by Abella [Martin J. concurring], Brown J., and Rowe J. [Moldaver and Côté JJ. concurring]), that the appeal is dismissed.
Justice Karakatsanis wrote as follows (at paras. 1-3, 50-52):
"...The appellant Mikisew Cree First Nation argues that the Crown had a duty to consult them on the development of environmental legislation that had the potential to adversely affect their treaty rights to hunt, trap, and fish. This Court must therefore answer a vexing question it has left open in the past: Does the duty to consult apply to the law-making process?
I conclude that it does not. Two constitutional principles — the separation of powers and parliamentary sovereignty — dictate that it is rarely appropriate for courts to scrutinize the law-making process. The process of law-making does not only take place in Parliament. Rather, it begins with the development of legislation. When ministers develop legislation, they act in a parliamentary capacity. As such, courts should exercise restraint when dealing with this process. Extending the duty to consult doctrine to the legislative process would oblige the judiciary to step beyond the core of its institutional role and threaten the respectful balance between the three pillars of our democracy. It would also transpose a consultation framework and judicial remedies developed in the context of executive action into the distinct realm of the legislature. Thus, the duty to consult doctrine is ill-suited to the law-making process; the law-making process does not constitute “Crown conduct” that triggers the duty to consult.
This is not to suggest, however, that when the legislation undermines s. 35 rights, Aboriginal groups would be left without a remedy. Clearly, if legislation infringes s. 35 , it may be declared invalid pursuant to s. 52(1) of the Constitution Act, 1982 . Further, the Crown’s honour may well require judicial intervention where legislation may adversely affect — but does not necessarily infringe — Aboriginal or treaty rights. However, the resolution of such questions must be left to another day. In this appeal, the issue was framed in terms of whether the duty to consult doctrine should apply to the law-making process. I find that it should not.
...no aspect of the law-making process — from the development of legislation to its enactment — triggers a duty to consult. In the duty to consult context, “Crown conduct” has only been found to include executive action or action taken on behalf of the executive. I would not expand the application of the duty to consult doctrine to the legislative process.
Finally, my conclusions respecting the duty to consult do not apply to the process by which subordinate legislation (such as regulations or rules) is adopted, as such conduct is clearly executive rather than parliamentary (see N. Bankes, “The Duty to Consult and the Legislative Process: But What About Reconciliation?” (2016) (online), at p. 5). Furthermore, this conclusion does not affect the enforceability of treaty provisions, implemented through legislation, that explicitly require pre-legislative consultation (see e.g. Nisga’a Final Agreement, Chapter 11, paras. 30-31; Nisga’a Final Agreement Act , S.B.C. 1999, c. 2; Nisga’a Final Agreement Act, S.C. 2000, c. 7 ). Manner and form requirements (i.e. procedural restraints on enactments) imposed by legislation are binding (Hogg, at s. 12.3 (b); see also R. v. Mercure,  1 S.C.R. 234).
I add this. Even though the duty to consult does not apply to the law-making process, it does not necessarily follow that once enacted, legislation that may adversely affect s. 35 rights is consistent with the honour of the Crown. The constitutional principles — such as the separation of powers and parliamentary sovereignty ― that preclude the application of the duty to consult during the legislative process do not absolve the Crown of its duty to act honourably or limit the application of s. 35 . While an Aboriginal group will not be able to challenge legislation on the basis that the duty to consult was not fulfilled, other protections may well be recognized in future cases. 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 qua sovereign is absolved of its obligation to conduct itself honourably."
Justice Brown wrote (concurring reasons) as follows (at paras. 139-144):
"...in my respectful view, having acknowledged that there is no demonstrated infringement in this case, my colleague is searching for a problem to solve (while at the same time expressly declining to solve it). And she believes she has found that problem in what she sees as the potentially dishonourable conduct of the Crown in enacting non-rights-infringing (although rights-“affecting”) legislation —which, as I have already made clear, is not really a problem since, as a matter of constitutional law, “the Crown” does not enact legislation. In other words, my colleague undercuts the very constitutional principles of separation of powers and parliamentary privilege, and the constitutional limits that they impose upon judicial supervision of the legislative process, which support her conclusion that no duty to consult is owed in respect of that process, including legislative enactment. And in so doing, she endorses the potential engorgement of judicial power — not required by the law of our Constitution, but rather precluded by it — at the expense of legislatures’ power over their processes. Far from preserving what my colleague calls “the respectful balance between the . . . pillars of our democracy” (para. 2), this conveys inter-institutional disrespect. It would be no more “respectful” (or constitutionally legitimate) for a legislature to purport to direct this Court or any other court on its own deliberative processes.
Even putting that objection aside, my colleague’s reasons invoking the honour of the Crown appear to leave open the possibility that validly enacted legislation (which has not been or could not be the subject of a s. 35 infringement claim) might be declared to be “not consistent with [the honour of the Crown]” due to some failure to uphold the honour of the Crown. But in doing so, she runs up against those same constitutional principles of separation of powers and parliamentary privilege which furnish the entire constitutional basis for her conclusion that no duty to consult is owed in respect of legislative processes. The honour of the Crown is not a cause of action itself; rather, it speaks to how obligations that attract it must be fulfilled (Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14,  1 S.C.R. 623, at para. 73). While she finds that the enforceable duty to consult flowing from the honour of the Crown does not apply to the law-making process, my colleague, in substance, proceeds to treat the honour of the Crown as the potential source of an enforceable obligation on legislators to either refrain from passing certain legislation because it “affects” rights writ large, or not to do so without consultation.
In this regard, my colleague’s reference to “[o]ther forms of recourse [such as] declaratory relief . . . where legislation is enacted that is not consistent with the Crown’s duty of honourable dealing” (para. 47), is telling. For what, precisely, would a court grant “recourse”? Absent a s. 35 infringement, the answer is nothing, unless the duty to consult flowing from the honour of the Crown is itself being treated as applicable to the law-making process, despite my colleague’s conclusion to the contrary. Irrespective, then, of how a court might cast the speculative “[o]ther doctrines [that] may be developed” (para. 45) — for example, as a duty to accommodate, a duty not to “affect” rights, or as some fiduciary obligation — the resulting obligation would be, in substance, reducible either to the obligation which the Mikisew Cree First Nation asks the Court to impose here, or to some other formulation that still runs into the separation of powers and parliamentary privilege. While, therefore, I acknowledge that my colleague holds that there can be no enforceable duty to consult in the legislative process, the logic of her reasons nevertheless risks leading her toward the result advocated by Abella J., albeit via the circuitous and uncertain route of further litigation.
This brings me to a further objection. By raising (and then leaving undecided) this quixotic argument about the honour of the Crown — which neither the appellant nor any of the intervenors even thought to raise — my colleague Karakatsanis J. would cast the law into considerable uncertainty. It is worth reflecting upon just who would bear the brunt of this uncertainty. In this regard, there is a degree of irony in my colleague’s emphasis upon the honour of the Crown as facilitating “reconciliation” which, she says, entails “promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes” (para. 22, emphasis added). The effect of my colleague’s reasons would be quite the opposite. She invites s. 35 rights holders — that is, Indigenous peoples themselves — to spend many years and considerable resources litigating on the faint possibility that they have identified some “other form of recourse” that this Court finds “appropriate”. In other words, even though “[t]rue reconciliation is rarely, if ever, achieved in courtrooms” (Clyde River, at para. 24), it is to the courtroom that my colleague’s unresolved speculation would direct them. The burden of achieving reconciliation is thereby placed upon the one group of Canadians whose assertion of sovereignty is not what demands reconciliation with anyone or anything.
As my colleague Rowe J. explains (paras. 160-65), the effects of the legal uncertainty generated by Karakatsanis J.’s reasons would also be felt by legislators, who are, in essence, being told that they cannot enact legislation that “affects” (but does not infringe) certain rights that might exist — and that, if they do, they may be subject to as-yet unrecognized “recourse”. This would leave legislators in the dark, possibly for many years, about the efficacy of supply bills (and, therefore, of government budgets), and of legislation relating to matters as diverse as the delivery of health care and education, environmental protection, transportation infrastructure, agriculture and industrial activity, even where — it bears emphasizing — such legislation is validly enacted and fully compliant with Aboriginal and treaty rights guaranteed by s. 35 . It would also generate intolerable uncertainty for governments charged with implementing such legislation, and for all those who pursue economic or other activities in reliance upon the efficacy of validly enacted and constitutionally compliant laws.
An apex court should not strive to sow uncertainty, but rather to resolve it by, wherever possible (as here), stating clear legal rules. ..."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.