Duty to Consult, Honour of the Crown, and Legislatures – An Unclear Way Forward for Indigenous Communities in Mikisew Cree First Nation v Canada (Governor General in Council)
The recent decision Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 divided the Supreme Court of Canada (“SCC”), resulting in an unclear way forward for Indigenous communities seeking to protect their Aboriginal and treaty rights during the legislative process. The case arises from the Mikisew Cree Nation’s application for judicial review of environmental protection legislation introduced by the federal government that would limit requirements for environmental assessments. In this post, I will map out the four decisions from the SCC and how these decisions create confusion about the status of any requirements on the legislature on the duty to consult.
In 2012, the Harper government introduced omnibus legislation that would significantly impact the future of Canada’s environmental laws, especially regarding environmental assessments before construction projects. The introduced legislation would have wide ranging impacts on requirements for environmental assessments and protection of natural resources. At no point in the development of or passing of the legislation was the Mikisew Cree Nation consulted.
The Mikisew Cree Nation hails from northern Alberta and are parties to Treaty No. 8, which ceded large tracts of land to the Crown in exchange for protections of traditional rights to hunt, fish, and trap on the land. Fearing that the new environmental protection regime created by the omnibus legislation would have an impact on the Mikisew Cree Nation’s treaty rights to hunt, fish, and trap, the group launched a judicial review of the legislation challenging the lack of consultation.
The Federal Court (“FC”) allowed the review and held that the duty to consult was triggered by the legislation’s potential impacts on the treaty rights of the Mikisew Cree Nation. Because the legislation reduced requirements for environmental assessments for various projects, the FC held that there were concerns about the legislation breaching treaty rights such that a duty to consult was triggered. The decision was appealed by the Crown. The Federal Court of Appeal (“FCA”) allowed the appeal on the grounds that the FC erred in conducting a judicial review of the legislation, since the action did not disclose a ground for judicial review under the Federal Courts Act R.S.C. 1985, c. F-7. Furthermore, the FCA found that when ministers develop policy, they are acting in a legislative capacity, and assigning a duty to consult to federal legislative acts would be inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. The case was appealed to the SCC to determine two issues: (1) whether the FC had jurisdiction to judicially review the legislation, and (2) whether a duty to consult could ever be triggered during the legislative process.
The SCC Decision
The SCC uanimously held that the Federal Court lacked jurisdiction to hear the Mikisew Cree Nation’s application for judicial review. Thereafter, the SCC’s reasons diverged on the issue of the duty to consult in the legislative context. The decision is made up of four concurring opinions, with radically different answers to the question of whether the federal government has a duty to consult when crafting legislation that has an anticipated impact on the treaty rights or aboriginal rights of indigenous peoples in Canada.
The Majority Decision: Karakatsanis, Wagner, and Gascon JJ
In the majority decision, Justice Karakatsanis , writing for herself, Chief Justice Wagner and Justice Gascon , addressed the issue of standing in detail. She noted that the Federal Court only has jurisdiction when it has a statutory grant of jurisdiction. Section 17(1) of the Federal Courts Act provides that the Federal Court has jurisdiction when relief is claimed against the Crown, but this relief does not extend to actors seeking relief over a legislative act of the Federal Government. Further, when Ministers craft legislation, they are acting as legislators. When acting in a legislative capacity, the executive is not subjected to judicial review as the executive might be within an administrative context. Therefore, the Federal Court did not have jurisdiction to provide a judicial review of legislation in the first instance.
Justice Karakatsanis then addressed the issue of whether the duty to consult can ever apply to legislative actions taken by the Canadian government. For the majority, the duty to consult flows from the Honour of the Crown, which dictates that the Crown must conduct itself honourably when dealing with Indigenous peoples and their section 35 rights under the Constitution Act, 1982.
According to the majority, the problems with applying the “duty to consult doctrine” (Mikisew Cree First Nation, para 2), as it has been developed through the common law, does not apply well to the legislative context. The duty to consult doctrine often requires courts to intervene to ensure that the duties were met and to craft appropriate remedies where required, where action has been taken by the government. Having the duty to consult apply to legislative actions of the government would bring courts into the realm of legislation-crafting, which would violate the separation of powers principle.
Further, the majority found that mandating a duty to consult would interfere with parliamentary sovereignty and could interfere with the kinds of legislation that the government may craft. Parliamentary sovereignty is a foundational principle that allows Parliament to make or unmake any legislation it sees fit, so long as the legislation is compliant with the Constitution. Furthermore, requiring a duty to consult during the legislative process raises the additional challenge of crafting appropriate remedies where a duty to consult is found to be breached. Such a remedy would require courts to directly involve themselves in the legislative process, which could be amended later by Parliament. It is also unclear just where in the legislation drafting process the duty to consult is actually engaged, and whether meaningful remedies can be provided at different points in the process.
The majority noted that not recognizing the duty to consult during the legislative drafting process still leaves Indigenous communities with remedies. The duty to consult is one dimension of the Honour of the Crown, but not the only dimension. The Honour of the Crown means that the government is not absolved of responsibility to Indigenous communities during the legislative process (though it also does not create a duty to consult). While not providing much guidance on just how the Honour of the Crown might be engaged during the legislative process, the majority found that the Honour of the Crown could require that other protections be recognized in future cases where Aboriginal or treaty rights are impacted, but where there is no duty to consult.
Concurring Judgement– Justices Abella and Martin
Although Justice Abella concurs in result with the majority, the rest of her decision reads very much like a dissent. On the issue of whether the Federal Court had jurisdiction to judicially review the omnibus legislation, Justice Abella agreed in result with the majority and the FCA, but disagreed that there must be a duty to consult during the legislative process, through the separation of powers between the legislative and judicial branches of government create difficulties in enforcing such a duty to consult.
Justice Abella found that section 35 of the Constitution Act, 1982 provides that legislation in breach of the duty can be challenged. The Honour of the Crown logically extends that duty to legislation that has not yet been enacted and government conduct that is contemplated and has the potential to impact Aboriginal or treaty rights. As the Honour of the Crown is always at stake in its relationship with Indigenous communities, the duty to consult applies to any exercise of power, whether legislative or executive. The legislative branch of the government should not be immune from its obligations to maintain the Honour of the Crown in relation to indigenous communities.
She further noted that recognizing a duty to consult during the legislative process does not require that parliamentary sovereignty be abandoned. In fact, the two values can be reconciled through a recognition that the duty to consult is a flexible doctrine that can require different things of the Crown depending on the circumstances. The remedies available when a duty to consult is breached are also flexible and can also vary depending on the circumstances. However, the scope of remedies available during the legislative process must be limited because of procedural requirements that state only existing legislation may be challenged and because of the limited ability of courts to interfere with the legislation-making process.
Concurring Judgement – Justice Brown
Justice Brown wrote a concurring judgment. While concurring in the result of the decision that the Federal Court did not have jurisdiction to hear the judicial review of the omnibus legislation, the rest of Justice Brown’s decision also reads much more like a dissent with the majority and with Justice Abella’s decision than like a concurring judgment.
Justice Brown takes a much stronger position on the duty to consult during the legislative process, asserting that the entire legislative process is immune from judicial review, and thereby from claims that the government had a duty to consult. In Justice Brown’s view, in order for the proper functioning of the Canadian state, the separation of powers must be adhered to, insofar as separate branches of government must not unduly interfere with each other. Ultimately, Justice Brown understood the Crown as distinct from the legislature, insofar as the Crown is not responsible for enacting legislation. Enacting laws is the task of the legislature, though Ministers of the Crown do participate in the legislative process.
Concurring Judgement – Justices Moldaver, Côté, and Rowe
Justice Rowe’s decision is substantially similar to Justice Brown’s decision, but it also includes a discussion about the remedies available when the duty to consult is not engaged by the legislative process. Justice Rowe noted that remedies are available for enacted legislation and new situations may arise that contribute to the jurisprudence, but found that the claim from the Mikisew Cree Nation provided no such novel circumstance. According to Justice Rowe, the current mechanisms through Section 35 of the Constitution provide a means for the vindication of rights that does not interfere with the legislative process. Increasing the scope of the duty to include the legislative process would introduce complexity to the legislative process that has the potential to introduce dysfunction to an already complicated and time-consuming activity.
Although the SCC arrived an unanimous decision with respect to the dispute between the federal government and the Mikisew Cree Nation, the lack of coherence on the issue of whether a duty to consult can apply to legislative actions provides little future guidance on whether a duty to consult during the legislative process exists. For example, the majority held that there is no formal duty to consult, but the Honour of the Crown is a live issue engaged at all points of the legislative process.
It is also noteworthy that the “majority” is a majority in title only; it did not make up a majority of the justices on the SCC. Whether there is any possibility of a duty to consult between the government and Indigenous communities depends largely on whether Justice Abella’s concurrence can be interpreted consistently with the majority decision. If Justice Abella’s decision can be read consistently alongside the majority, then those decisions together form the majority of the Court. On the other hand, if it cannot be read consistently, then Justice Brown’s and Justice Rowe’s decisions, which make up four justices of the SCC, is the binding precedent which must be followed. If this is the case, there is no space for anything like a duty to consult or corresponding obligation from the federal government that emanates from the legislative process. If Justice Abella’s decision forms part of the majority decision, there is a possibility that the Honour of the Crown can be engaged during the legislative process. Neither Justice Karakatsanis nor Justice Abella provide much guidance on the circumstances that might give rise to such a scenario, but neither decisions precludes the Honour of the Crown being engaged during the legislative process. On the other hand, should Justice Brown and Justice Rowe’s decisions form the majority, then the Honour of the Crown will not not engaged during the legislative process, and laws can only be challenged when legislation has already been passed.
I believe that Justice Abella’s decision can be interpreted consistently with the majority’s decision to allow for the Honour of the Crown to be engaged during the legislative process. This would ensure that Aboriginal and treaty rights are respected at the stage of drafting legislation. While this may not amount to a complete duty to consult, there can be some obligations with corresponding remedies if the Honour of the Crown is engaged. According to both decisions, the honour of the Crown does exist at the legislative stage, but it is unclear under what circumstances a breach of the Honour occurs and what remedies are available when there has been a breach.
While this decision is widely regarded as a loss for Indigenous peoples in Canada, perhaps there is still space for an interpretation of the Honour of the Crown that puts concrete obligations on the Crown even during the legislative process. Unfortunately, remedies are available only after legislation has been enacted, which forces Indigenous communities to engage in litigation to protect the rights constitutionally guaranteed to them. While this might be procedurally fair insofar as other groups in Canada also may not challenge pending legislation that may breach their Charter rights, the decision falls short of ensuring substantive equality because Aboriginal and treaty rights are not nearly as self-evident during the drafting of legislation as other protected rights may be. However, the ends of justice are not always met in ways that are convenient for the legislature. What is required for justice and reconciliation is a commitment to the Honour of the Crown throughout all government conduct – including legislation. And for the Honour of the Crown to mean anything in practice, there must be a duty to consult during the legislative process.