The Supreme Court Rules on the Duty to Consult First Nations During the Legislative Process
On October 11, 2018, in a highly anticipated decision1, the Supreme Court of Canada unanimously dismissed an appeal brought by the Mikisew Cree First Nation (the “Mikisew”), concluding that the Federal Court did not have jurisdiction to hear the application for judicial review of measures taken by ministers exercising legislative powers, as they are not then acting as a “federal board, commission or other tribunal” whose actions are subject to judicial review. The Supreme Court concluded that no provision of the Federal Courts Act allowed the Federal Court to scrutinize Parliament’s legislative process. The Court also concluded that the Crown’s duty to consult First Nations does not apply to the legislative process.
Context of the decision
The Mikisew filed an application for judicial review of two omnibus bills introduced in 2012 by the Conservative government that would have significant effects on Canada’s environmental protection regime and potential to negatively affect their rights to hunt, trap and fish under Treaty No. 8. The Mikisew were not consulted about this draft legislation. They maintained that by developing and enacting legislation affecting their Aboriginal rights enshrined by treaty, the federal ministers involved were acting in an executive capacity rather than pursuant to the legislative powers conferred on them by the Constitution Act, 1867.
The Federal Court concluded that the introduction of the omnibus bills triggered the obligation to consult the Mikisew. On appeal, a majority of the Federal Court of Appeal held that judicial review of a legislative measure is not allowed by the Federal Courts Act and that ministers are not subject to judicial review when developing policy.
Refusal to apply the duty to consult to the legislative process
In a judgment including four sets of concurring reasons, the Supreme Court nevertheless agreed by a margin of seven to two that the duty to consult First Nations does not apply to the legislative process, including royal assent.
In the reasons drafted by Justice Karakatsanis (Chief Justice Wagner and Justice Gascon concurring), her analysis begins with an exhaustive review of the purpose and dynamic between the duty to consult and the principle of the honour of the Crown from which it derives. By virtue of the principles of separation of powers and parliamentary sovereignty, she concludes that actions of federal ministers during the legislative process are pursuant to the powers conferred on them by the Constitution Act, 1867 and not pursuant to their statutory powers, thus mandating judicial non-incursion into the legislative process:
 Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature, even if such a duty were only enforced post-enactment. The duty to consult jurisprudence has developed a spectrum of consultation requirements that fit in the context of administrative decision-making processes. Directly transposing such executive requirements into the legislative context would be an inappropriate constraint on legislatures’ ability to control their own processes.
While arriving at the same conclusions as Justice Karakatsanis, Justice Brown uses a different analytical approach, and, while doing so, strongly criticizes his colleague for the judicial uncertainty her reasons entail. For Justice Karakatsanis leaves unanswered the question whether the principle of the honour of the Crown would allow a statute – otherwise validly adopted and immune from challenge on the basis of section 35 of the Constitution Act, 1982 and the Sparrow2 test – “not consistent with [the honour of the Crown]” because of an infringement of that principle by the legislature. She adds that in such a case, other relief or doctrines may be developed to remedy this.
Justice Brown, on the contrary, clearly affirms that this reasoning leads to a direct clash with parliamentary sovereignty and privilege, causing uncertainty for every legislator. In his words, legislators 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’”3.
Justice Rowe (Justices Moldaver and Côté concurring) shares the concerns of Justice Brown, adding that “[i]mposing a duty to consult at this stage could effectively grind the day-to-day internal operations of government to a halt”4.
Justice Abella, however, in a dissenting opinion concurred in by Justice Martin, considers that there is a duty to consult in respect of proposed legislation with the potential to adversely impact established Aboriginal or treaty rights, and that failure to respect that duty would open the door to a court challenge. The formal label applied to the type of action that the government takes with respect to Aboriginal rights and interests protected by section 35 of the Constitution Act, 1982 in no way affects the principle of the honour of the Crown, which applies to all the government’s dealings with Indigenous peoples.
Thus, seven of the nine judges concluded that the Crown has no duty to consult First Nations at any stage during the legislative process. However, the Court also noted that it is sound practice to seek the opinion of Indigenous communities whose interests or Aboriginal or treaty rights could be affected by proposed legislation.
The Supreme Court avoids uncertainty
While the Court found that there is no obligation to consult during the legislative process, Justice Karakatsanis nevertheless raised the possibility of validly enacted legislation being challenged if it has the potential to “adversely affect” Aboriginal or treaty rights. This opens the door to constitutional challenges based on a breach of the principle of the honour of the Crown, which Canadian courts will have to rule on in accordance with the rules established by the Supreme Court.
1 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 (hereinafter, “Mikisew”).
2 R v. Sparrow,  1 SCR 1075
3 Mikisew, par. 143;
4 Mikisew, par.164;