The Supreme Court of Canada (SCC) has ruled that there is no duty to consult Indigenous groups at any stage of the law-making process. This is an important ruling as the recognition of a justiciable duty to consult in the legislative process would have had very significant implications for the ability of federal, provincial, and territorial governments to pass laws in a timely way.
This case was particularly important for Advocates for the Rule of Law (“ARL”) as it is the first case it has ever intervened in at the SCC. ARL argued that recognizing a justiciable duty to consult at any stage of the law-making process would be contrary to constitutional principles of parliamentary sovereignty and the separation of powers and would severely impede the law-making process which is integral to the rule of law in Canada. The arguments advanced by ARL were consistent with the reasons of the 7 justices in the majority rejecting the recognition of such a duty, particularly the reasons of Justices Brown and Rowe.
Notably, this finding does not mean that legislation is immune from judicial challenge by Indigenous groups. Laws can still be struck down once enacted if they infringe established Aboriginal or treaty rights or Charter rights. The SCC’s split ruling with four different judgments also creates uncertainty about whether legislation can be challenged once enacted on additional grounds, specifically a breach of the honour of the Crown. While this suggestion was raised in a minority concurring decision, it will likely lead to further litigation on this point.
Background on the Decision
By way of background, the Crown has a duty to consult and potentially accommodate affected Aboriginal groups whenever it contemplates conduct or a decision that may adversely impact asserted or established Aboriginal or treaty rights. The level of consultation required in a given situation is highly contextual and falls along a spectrum and the depth of consultation required is dependent on a preliminary assessment of the strength of claim at issue and the seriousness of the potential impact of the proposed government conduct on asserted or established Aboriginal or treaty right at issue.
Throughout any consultation process, the Crown must act in good faith and consult with an open mind and with the intention of substantially addressing the concerns raised. Consultation may give rise to a duty to accommodate, which requires taking steps to avoid irreparable harm or mitigating or minimizing the impacts of a government action or decision on the Aboriginal interests at stake. This is a highly litigious area of the law and there have been hundreds of court cases since 2004 in which Indigenous groups have gone to court to challenge an alleged lack of adequate consultation and/or accommodation on decisions by the federal, provincial, and territorial governments.
This appeal arose from a judicial review by the Mikisew Cree First Nation relating to the former Conservative government’s introduction of omnibus legislation amending several Canadian environmental and regulatory laws in 2012, including the Fisheries Act, the Canadian Environmental Assessment Act, 1992, the Species at Risk Act, and the Navigable Waters Act. The Mikisew Cree were not consulted on the amendments. While the Crown’s duty to consult has to date been limited to executive action, the appellant argued that the duty to consult was triggered because the Ministers were acting in an executive (rather than legislative) capacity in developing and introducing legislation and the amendments reduced federal regulatory oversight on projects that may affect their treaty rights to hunt, fish, and trap. They sought various declarations that the respondent Ministers had a duty to consult them regarding the development and introduction of the omnibus bills.
At first instance, Justice Hughes of the Federal Court held that the duty to consult was triggered, but that it only arose after the bills were introduced into Parliament, due to the separation of powers and the principle of parliamentary sovereignty. The Federal Court of Appeal set aside that decision, finding that the Federal Court did not have jurisdiction to supervise or impose a duty to consult in the legislative process and that such duty would unduly interfere with Parliament’s processes and fetter its law-making capacity, contrary to parliamentary sovereignty.
No Duty to Consult in the Legislative Process
While there were four different judgements, the SCC was unanimous in dismissing the Mikisew Cree’s appeal. All nine judges agreed that the Federal Court lacked jurisdiction over the Mikisew Cree’s claim because the Federal Courts Act does not allow for judicial review of parliamentary activities and actions of Ministers in the parliamentary process. The Court, however, split (7-2) on whether legislation could be challenged, once enacted, for a failure to consult Indigenous groups.
The majority of the judges in three separate concurring decisions (by Karakatsanis, Brown, and Rowe JJ.) ruled that there could be no duty to consult at any stage of the legislative process, including Royal Assent. In other words, even once enacted, legislation cannot not be challenged on the basis of a failure to consult Indigenous groups whose Aboriginal or treaty rights may be adversely affected by the legislation. While they each provided separate reasons, the three judges found that recognizing a duty to consult at any stage in the legislative process would be contrary to parliamentary sovereignty, parliamentary privilege, and/or the separation of powers which protect the law-making process from judicial oversight. As stated by Justice Karakatsanis (with Wagner CJ and Gascon J. concurring):
The development of legislation by ministers is part of the law-making process and this process is generally protected from judicial oversight. Further, this Court’s jurisprudence makes clear that, if Cabinet is restrained from introducing legislation, then this effectively restrains Parliament…
Applying the duty to consult 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. Directly transposing such executive requirements into the legislative context would be an inappropriate constraint on the legislatures’ ability to control their own processes.
The judges in the majority also acknowledged numerous practical concerns that would arise if a duty to consult were imposed upon the legislative process. Justice Rowe (Moldaver and Côté JJ, concurring) stated that imposing a duty to consult in the legislative process would be “highly disruptive” to the legislative process and “could effectively grind the day-to-day internal operation of government to a halt” given the low threshold to trigger the duty to consult and the number of Indigenous groups that would need to be consulted.
All three judgements noted the availability of other existing remedies available to Indigenous groups if enacted legislation is found to infringe established Aboriginal or treaty rights – such legislation may be declared invalid. The reasons of Justice Karakatsanis may also open the door to other potential remedies, as further discussed below.
Notably, the opinions of the majority do not suggest that governments should not consult Indigenous groups on legislation. They stated that they were simply determining whether the courts are able to intervene to determine whether consultation was adequate.
In a minority decision, Justice Abella (Martin J. concurring) held that the enactment of legislation that has the potential to adversely affect asserted or established Aboriginal or treaty rights would give rise to the duty to consult and that legislation enacted in breach of that duty could be judicially challenged. Justice Abella held that it would make little analytical sense to take a different approach to legislation than to executive conduct given that the Honour of the Crown applies to all of the government’s dealings with Indigenous groups. She noted that this could allow the Crown to evade consultation through legislation and that it would leave Indigenous groups without a remedy if there were adverse effects on their Aboriginal or treaty rights that did not give rise to an infringement. Notably, an action for infringement only arises in the case of established rights (either previously established or in the course of an infringement proceeding) and requires a “meaningful diminution of the right”, which is a higher threshold than an “impact” except in the case of established Aboriginal title.
Minority Opens Door to Other Litigation
While ruling out a duty to consult at any stage of the legislative process, Justice Karakatsanis (Wagner C.J. and Gascon J. concurring) held that the honour of the Crown may require “judicial intervention where legislation may adversely affect – but does not necessarily infringe – Aboriginal or treaty rights”. Her reasons largely leave the resolution of this question to another day but notes that it may give rise to other remedies such as declaratory relief. She provides two examples where this may arise: (i) where the Crown attempts to effectively legislate around a duty to consult that would otherwise arise (i.e. legislate a project approval); and (ii) where the Crown legislates in a way that effectively removes future Crown conduct that would otherwise trigger the duty to consult. The latter example is effectively what the Mikisew Cree alleged the federal government did in this case and it appears by the example cited by Justice Karakatsanis that she was actually referring to legislation that does not allow for consultation of executive conduct that would otherwise trigger the duty to consult – not eliminating or reducing executive decision-making that would trigger the duty to consult.
It is anticipated that Indigenous groups will use this obiter in future cases and argue that Justice Karakatsanis, Wagner C.J., and Gascon J. were in the majority on this point. This is in fact a minority opinion as four judges disagreed on this specific issue (Brown, Rowe, Moldaver, and Côté JJ) and the two dissenting judges did not weigh in as they were focused solely on the existence of a duty to consult, not another remedy (Abella and Martin JJ.). Justice Brown wrote a strong response to Justice Karakatsanis on this specific issue, with which Justices Rowe, Moldaver and Côté concurred. In his reasons, Justice Brown states:
….having acknowledged that there is no demonstrated infringement in this case, my colleague is searching for a problem to solve (while at the same time expressly declining to solve it). And she believe she has found that problem in what she sees as the potentially dishonourable conduct of the Crown in enacting non-rights infringing (although rights-“affecting”) legislation – which, as I have already made clear, is not really a problem since, as a matter of constitutional law, “the Crown” does not enact legislation.
…By raising (and then leaving undecided) this quixotic argument about the honour of the Crown — which neither the appellant nor any of the intervenors even thought to raise — my colleague Karakatsanis J. would cast the law into considerable uncertainty. It is worth reflecting upon just who would bear the brunt of this uncertainty. In this regard, there is a degree of irony in my colleague’s emphasis upon the honour of the Crown as facilitating “reconciliation” which, she says, entails “promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes” (para. 22, emphasis added). The effect of my colleague’s reasons would be quite the opposite. She invites s. 35 rights holders — that is, Indigenous peoples themselves — to spend many years and considerable resources litigating on the faint possibility that they have identified some “other form of recourse” that this Court finds “appropriate”. In other words, even though “[t]rue reconciliation is rarely, if ever, achieved in courtrooms” (Clyde River, at para. 24), it is to the courtroom that my colleague’s unresolved speculation would direct them. The burden of achieving reconciliation is thereby placed upon the one group of Canadians whose assertion of sovereignty is not what demands reconciliation with anyone or anything.
As my colleague Rowe J. explains (paras. 160-65), the effects of the legal uncertainty generated by Karakatsanis J.’s reasons would also be felt by legislators, who 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”.
An apex court should not strive to sow uncertainty, but rather to resolve it by, wherever possible (as here), stating clear legal rules. To be clear, then: judicial review of the legislative process, including post-facto review of the process of legislative enactment, for adherence to s. 35 and for consistency with the honour of the Crown, is unconstitutional.
The reasons reveal a sharp divide within Canada’s highest court on this issue. It also creates uncertainty about potential challenges to future federal, provincial, and territorial legislation and will likely be an area of future litigation.