The Supreme Court of Canada released its decision today in Mikisew Cree First Nation v. Canada (Governor General in Council). The decision significantly deals with whether there is a duty on the government to consult with Aboriginal groups prior to introducing legislation. The Court held (7-2) that no such duty exists. However, 3 of the 7 justices were somewhat equivocal in their pronouncement on this issue, which Brown J. lamented at paragraphs 103 & 104 of his concurring reasons. It is difficult to say what this will mean for future litigation in this area, but certainly prospective litigants would be better served by more definitive and categorical language.
As we previously reported, ARL was granted leave to intervene in this case and was also granted leave to make oral submissions. Our factum can be read here. ARL sought to intervene in the Mikisew Cree/Courtoreille case because it concerned bedrock principles of the Canadian Constitution: the separation of powers and legislative supremacy, both of which, in our view, militated against affirming a duty to consult in the legislative process. While one can never know what motivated the justices, it is safe to say that our arguments dovetailed with the reasoning of the 7 justices in the majority, and especially of Brown J.’s concurrence, which Rowe, Moldaver and Côté JJ. adopted.
ARL would once again like to thank our counsel at McCarthy Tétrault, Brandon Kain and Bryn Gray, for representing so brilliantly before the Supreme Court.