Canadian Bar Association – Justin Ling

Is there a duty to consult in the legislative processes?


The rules around the Crown’s duty to consult have come a long way in Canada, thanks in large part to courts who have been broadly supportive of the principle that when the Crown is planning action that that could have an adverse impact on Indigenous or Treaty rights, those communities should be heard and, where appropriate, accommodated. A recent example involves the Supreme Court of Canada Supreme Court declaring Aboriginal title in Tsilhqot’in Nation v. British Columbia in 2014.

But what if Parliament were required to consult Indigenous peoples on legislation it plans on adopting?

The Supreme Court granted leave last week in a matter that may begin to answer that question.

In Courtoreille v. Canada, the Mikisew Cree First Nation — represented by Chief Steve Courtoreille — claims that the previous government introduced and adopted omnibus legislation passed by into law without consulting with his nation. That, Courtoreille argued, abridged the Mikisew nation’s treaty rights.

The dispute is a complex one that strikes at the very core of Canada’s system of governance.

For one, it raises questions surrounding the division of powers. First Nations are organized around governance structures, to some extent separate from Parliament.

Also, the courts are typically reluctant about telling Parliament how it ought to conduct is legislative review process.

And, fundamentally, Parliament introduces laws by tabling legislation, making it public, and then inviting witnesses to file submissions and testify before a committee. Does that not amount to consultation?

The Federal Court ruled “the Crown had, in the circumstances of this case, a duty to consult with the Misikew at the time that each of the omnibus bills was introduced into Parliament.” Justice Roger T. Hughes concluded that the consultation ought to have included informing the Misikew “of the those portions of each of those Bills as might potentially have an impact on the usual vocations of the Misikew.”

The law stripped federal protections for various waterways, and could well pose a risk to the Alberta Cree’s traditional way of life.

On those grounds, Justice Hughes held that there was a duty to consult with the Cree nation and that an invitation to testify at committee was insufficient. The thinking here is that it is the responsibility of minister of the Crown, not parliamentarians, to consult.

Ultimately, the ruling was purely declarative and the court, considering the transgression to be it saw no value in granting an injunction – “a declaration that the parties must now consult would be pointless,” Justice Hughes wrote.

Jeremy Barretto, Thomas Isaac, and Heather Weberg of Osler LLP summed up the significance of that decision in 2015, after the decision was handed down.

“In the present case, the Ministers made a set of policy choices that led to the creation of a legislative proposal to be submitted to Cabinet, which resulted in the formulation and introduction of the bills into Parliament. In doing so, they acted in their legislative capacity to make decisions that were legislative in nature,” they wrote.

On account of parliamentary sovereignty, they note, “the Court concluded that if the Crown had a duty to consult Mikisew, judicial intervention could not be triggered before the Bills were introduced into Parliament.”

Both sides appealed the ruling, and the Federal Court of Appeal overturned it.

“The Mikisew Cree seek to extend the duty to consult by invoking it in respect of changes to environmental legislation, changes whose application is not specific to them or to their territory,” the judges wrote.

They concluded: “The duty to consult cannot be conceived in such a way as to render effective government impossible … At some point the ability to govern in the public interest can be overwhelmed by the need to take into account special interests.”

The court set aside the declaration of the lower court ruling that there was no duty to consult in Parliament’s legislative process.

This legal fight has been a long time brewing.

“Prior to the Courtoreille decision, the Supreme Court of Canada ‘left for another day’ the question of whether the duty to consult applies to the legislative action,” notes Krista Robertson of JFK Law, referring to the top court decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council.

“While the Federal Court in Courtoreille did not quash the impugned legislation, the decision is a notable advancement in the law establishing the Crown’s duty to consult and accommodate with potentially affected First Nations before enacting legislation.”

That advancement could be enormous, should the top court reinforce the lower court decision. It would create some very interesting caveats and conditions to both the well-established notion of the separation of powers and the sovereignty of Parliament.

If the appeal fails, it would offer some clear constraints and limits to the duty to consult that many have been trying to divine.

Either way, clarity on the matter will be welcome.

“As also recognized by the majority [of the Federal Court of Appeal], there is a clear tension in the case law between the doctrine of the separation of powers and the duty to consult that has developed,” wrote Sandy Carpenter, Nicole Bakker, and Roy Millen for Blakes in late 2016.

That development, they note, comes thanks to Section 35 of the Constitution Act of 1982, which endorse and affirm the treaty rights of all Aboriginal peoples.

“If the SCC considers this issue, it will likely have to define the extent of section 35 rights vis-à-vis legislative powers, and how each constitutional principle limits the other.”

There are also interesting political implications to the case. The government arguing in this case is not the same as the one who introduced the offending omnibus bills. And this government has sworn to sign and implement the United Nations Declaration on the Rights of Indigenous Peoples, and to consult all Indigenous peoples at every turn.

“This is interesting as it could be argued that this position conflicts with the provisions of the [UN Declaration] on the role of Indigenous Peoples in the development of legislation that might affect them — provisions that the new government expressly adopted earlier in the year,” the three members of the Blakes Aboriginal Law Group write.

Courtoreille promises to be a case to watch in 2017.