Canada’s lawmakers do not have a duty to consult with Indigenous people before introducing legislation that may affect constitutionally protected Indigenous and treaty rights, the Supreme Court ruled Thursday.
The decision will be welcomed by the federal government, which has argued such an obligation would be far too onerous and slow down the legislative process considerably.
In its 7-2 decision, the top court has ruled against the Mikisew Cree First Nation on the duty to consult matter.
The First Nation in Alberta had argued that two omnibus budget bills introduced by the former Conservative government in 2012 affected their constitutionally protected treaty rights because it amended regulatory protections for waterways and the environment, threatening their established right to hunt, trap and fish on their traditional territory. These rights were guaranteed by the Crown when it signed Treaty 8 in 1899, and enshrined as constitutional rights after the passage of the Constitution Act of 1982.
The First Nation argued it should have been consulted by the government before it drafted the legislation and before it was tabled in Parliament.
It asked the court to extend existing duty to consult obligations — which, to this point, have only applied to executive actions taken by cabinet and regulators — to the policymaking process.
Presently, the Crown typically carries out its obligation to consult with potentially impacted First Nations through other means, like with the National Energy Board when a natural resources project could infringe on protected Indigenous rights or through a Crown consultation team.
For example, before approving the Trans Mountain pipeline expansion, cabinet had a constitutional obligation to consult with Indigenous people along the project’s route. It carried out this work through a Crown consultation team. In a September ruling, the Federal Court of Appeal ultimately found those efforts to be insufficient and the Liberal government has appointed a former Supreme Court justice to redo the consultation work.
The Mikisew said such consultation efforts should be made before any bill that could affect their rights is introduced in Parliament.
Ottawa had argued this would be a threat to parliamentary supremacy and undermine the role of Parliament — and the separation of legislative, executive and judicial powers — by subjecting laws that have not yet passed to judicial review.
‘Rarely appropriate for courts to scrutinize’
The majority of the court has ruled there is no binding constitutional duty to consult before a law is passed.
“The duty to consult is ill-suited for legislative action. It is rarely appropriate for courts to scrutinize the law-making process, which includes the development of legislation by ministers,” said Supreme Court Justice Andromache Karakatsanis, who wrote the lead opinion on this case.
“Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature.”
The court also raised practical concerns: while cabinet ministers could consult before the introduction of legislation, it is possible bills could then be amended by MPs and senators in Parliament (as is often the case). Private members’ bills would not face the same consultation obligations.
“In the long chain of events contributing to the development of legislation, disentangling what steps the duty to consult applies to (because they are the executive) and what actions are immune (because they are parliamentary) would be an enormously difficult task,” the court said.
Justice Malcolm Rowe, writing in his own opinion, said it would be “highly disruptive” to Parliament’s work to apply the duty to consult to legislative functions.
“It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing,” Rowe said. “It would offend foundational constitutional principles and create rather than solve problems.”
‘Duty to act honourably’
A majority of the justices said Indigenous people can pursue other remedies if legislation affects their rights.
And yet while the court said there is no duty to consult during the legislative process, in a 5-4 decision, the court found there is still an obligation on the government to act honourably and maintain the “honour of the Crown” when drafting legislation that may affect Indigenous people and their charter rights.
Aboriginal and treaty rights are protected under Sec. 35 of Canada’s Charter of Rights and Freedoms.
The court did not specify how a government would fulfil its duty to act honourably, paving the way for future legal challenges to define the practical considerations of this longstanding legal principle.
Justice Rosalie Abella was a dissenter on the duty-to-consult ruling.
She said the honour of the Crown “infuses the entirety of the government’s relationship with Indigenous Peoples,” and thus the duty to consult “must apply to all exercises of authority … this includes in my view the enactment of legislation.”
Moreover, in a unanimous ruling, the top court said the Federal Court, which initially sided with the Mikisew, did not have the jurisdiction to rule on parliamentary activities or on a bill that has not yet been enacted.
The court said the legislative process is not subject to judicial review.