On January 15, 2018, lawyers for Advocates for the Rule of Law (“ARL”) will be appearing before the Supreme Court of Canada to make submissions in a case that will consider whether there is a justiciable duty to consult potentially affected Aboriginal groups in the legislative process. This is the first Supreme Court of Canada case that ARL has intervened in since it was founded in 2014. ARL will be arguing that that the Court should not recognize a justiciable duty to consult at any stage of the law-making stage as it would be contrary to the 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.
Background on the Duty to Consult
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, ranging from mere notice at the low end to deep consultation at the high end. It is determined by a preliminary assessment of the strength of claim at issue and the seriousness of the potential impact of the proposed government conduct on the 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.
To date, it has arisen most often in the context of resource development and management decisions by the Crown. The threshold to trigger the duty is low and in 2011 Indigenous and Northern Affairs Canada estimated that it is triggered over 100,00 per year for some provinces and over 5,000 times per year for the federal government. This is also a highly litigious area of law. Since Haida Nation, the Supreme Court of Canada’s seminal case articulating the duty to consult framework in 2004, there have been hundreds of court cases in which Aboriginal 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.
Background on the Decision Under Appeal
The case at issue in this appeal arose from a challenge by the Mikisew Cree First Nation, an Alberta Treaty 8 First Nation, to two contentious Omnibus bills (Bill C-38 and Bill C-45) that were introduced by the former Conservative federal government in 2012. The legislation made changes to Canada’s environmental assessment, navigable waters, fisheries, and species at risk laws. It sought to streamline certain federal regulatory processes and had the result of reducing the number of projects that would be the subject of federal environmental assessment and associated federal consultation of potentially affected Aboriginal groups. The federal government did not consult Aboriginal groups before this legislation was introduced or passed.
In Rio Tinto, the Supreme Court of Canada expressly left the question of whether legislative action can constitute Crown conduct for the purposes of triggering the duty to consult. At the Federal Court, the Mikisew Cree argued that the duty to consult was triggered by the development and introduction of new legislation because it constituted executive action that reduced federal regulatory oversight on works or projects that may affect the Mikisew Cree’s treaty rights to hunt, fish, and trap. Justice Hughes of the Federal Court held that the duty to consult was triggered in this case but only after the two bills were introduced into Parliament and not before.
This decision was overturned by the Federal Court of Appeal after Justice De Montigny held that the entire legislative process – from the development of policy options to the drafting, introduction and passage of legislation – cannot trigger the duty to consult. He held that the Federal Court’s decision was contrary to the well-established principle that courts will not intervene and provide relief until after legislation is enacted:
With all due respect, the Judge erred by issuing that declaration. Not only is it inconsistent with his previous findings that courts shall not intervene in the law making process as it would be an undue interference with Parliament’s process and sovereignty, but it also fails to recognize that no court has ever claimed jurisdiction over the introduction of legislation in Parliament. If there is one principle that is beyond any doubt, it is that the courts will not supervise the legislative process and will provide no relief until a bill has been enacted.
In his reasons, Justice De Montigny noted significant practical considerations that militated against the recognition of such a duty holding that “imposing a duty to consult at any stage of the process, as a legal requirement, would not only be impractical and cumbersome and potentially grind the legislative process to a halt, but would fetter ministers and other members of Parliament in their law-making capacity.”
In concurring minority reasons, Justice Pelletier decided the case more narrowly and held that the duty to consult is not triggered by “legislation of general application whose effects are not specific to particular Aboriginal groups or to the territories in which they have or claim an interest”, preferring to leave open the argument to another day about whether certain legislation of more limited application could trigger the duty to consult.
ARL’s Position in the Appeal
In the appeal before the Supreme Court of Canada, ARL will be joining the Attorneys General of Canada, British Columbia, Alberta, Saskatchewan, Quebec, and New Brunswick in opposing the recognition of a justiciable duty to consult.
In its factum, ARL argues that the duty to consult must be developed in a way that is consistent with the underlying principles of the Constitution, including parliamentary sovereignty and the separation of powers:
Accordingly, the duty to consult must be consistent with the underlying principles of the Constitution that comprise its internal architecture. The passage from the Secession Reference quoted above makes clear that these principles include those relating to the ‘workings of Parliament’, i.e., parliamentary sovereignty and the separation of powers.
The principle of parliamentary sovereignty recognizes not only the substantive power of Parliament to declare the law, but also the autonomy of the government when developing legislation to do so. Indeed, this Court has repeatedly emphasized ‘Parliament’s sovereignty as a legislative and deliberative assembly’, stating that ‘Parliament’s sovereignty when engaged in the performance of its legislative duties is undoubted’. Accordingly, ‘[t]he formulation and introduction of a bill are part of the legislative process with which the courts will not meddle’.
The related principle of the separation of powers ensures that ‘[t]he courts… are careful not to interfere with the workings of Parliament’. It is well-established that there exists a clear ‘need for its legislative activities to proceed unimpeded by any external body or institution, including the courts’.” (citations omitted)
In this case, the Appellant is attempting to avoid this well-established law precluding judicial intervention in the legislative process by arguing that the Crown is acting in an executive rather than legislative capacity before legislation is introduced into Parliament. ARL asserts that this compartmentalization of the legislative process into discrete, watertight stages to which different judicial standards are applied is impossible. It is also inconsistent with the Constitution’s underlying principles and Supreme Court of Canada jurisprudence on the scope of parliamentary sovereignty and the separation of powers.
ARL also argues that the imposition of a duty to consult at any stage of the legislative process would give rise to many practical difficulties and impediments to law-making in Canada, including:
- Severely impeding the federal and provincial governments from passing laws of general application in a timely manner due to the low threshold to trigger the duty to consult, the significant conduct that could be required to meet the duty, and the substantial number of Aboriginal groups that may need to be consulted in a country with over 630 Indian Act bands, 53 Inuit communities in 4 regions, and five Métis organizations and numerous local councils, each of whom has varying and sometimes conflicting interests;
- Requiring the courts to adjudicate issues that are currently non-justiciable, including the process used to develop laws and the reasonableness of the “give and take” of governments in making legislative decisions;
- Enabling courts to restrain Ministers of the Crown from introducing legislation for debate given the remedies available in the event of a breach of the duty to consult; and
- Ignoring the consultation opportunities that are typically afforded through the remainder of the law-making process and constraining the government’s ability to accept amendments to legislation or supporting private member’s bills without engaging in further consultation.
ARL asserts that rejecting a justiciable duty to consult in the legislative process will not leave Aboriginal groups without other opportunities to raise concerns with legislative proposals when it is introduced, advocate for changes once the legislation is passed (as they effectively did in this case), or bring an action for infringement if the legislation infringes Aboriginal or treaty right.
It is important to underscore that ARL supports and encourages governments to consult citizens in the development of legislation that could affect them. ARL notes in its factum that this appeal is “not about whether governments should as a matter of policy and practice consult with Aboriginal groups in some manner when developing legislation that could adversely affect their rights and interests. It is whether they must do so as a matter of constitutional law and whether a justiciable duty to consult in the legislative process can be reconciled with underlying and fundamental principles of the Constitution”.
ARL argues that a justiciable duty to consult at any point in the legislative process cannot be reconciled with other underlying and fundamental principles of the Constitution and looks forward to the hearing of this important case on January 15, 2018.
Bryn Gray is a partner at McCarthy Tétrault LLP specializing in Aboriginal law and has worked on a broad range of Aboriginal law and policy issues both in government and private practice. He and Brandon Kain are representing ARL in the Courtoreille intervention.
 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 35 and 39.
 Haida Nation at paras. 42, 46-50
 Indian and Northern Affairs Canada, Statement by the Observer Delegation of Canada delivered by Jean-Francois Tremblay, Senior Assistant Deputy Minister, Indian and Northern Affairs Canada, at the tenth session of the United Nations Permanent Forum on Indigenous Issues: Follow-Up to the Recommendations of the Permanent Forum on Free, Prior and Informed Consent, May 17, 2011,
 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  2 S.C.R. 650 (SCC) at paras. 42-44.
 Canada (Governor General In Council) v. Mikisew Cree First Nation,  FCA 311 at para. 59.
 Mikisew Cree (FCA), para. 60.