{"id":2669,"date":"2018-01-08T18:07:40","date_gmt":"2018-01-08T18:07:40","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2669"},"modified":"2018-10-12T17:13:41","modified_gmt":"2018-10-12T17:13:41","slug":"why-arl-opposes-a-duty-to-consult-in-the-legislative-process","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/why-arl-opposes-a-duty-to-consult-in-the-legislative-process\/","title":{"rendered":"Why ARL Opposes a Duty to Consult in the Legislative Process"},"content":{"rendered":"

On January 15, 2018, lawyers for Advocates for the Rule of Law (\u201cARL\u201d) 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.\u00a0 This is the first Supreme Court of Canada case that ARL has intervened in since it was founded in 2014.\u00a0 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.<\/p>\n

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Background on the Duty to Consult<\/strong><\/p>\n

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.\u00a0 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.\u00a0 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.[1]<\/a><\/p>\n

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.\u00a0 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.[2]<\/a><\/p>\n

To date, it has arisen most often in the context of resource development and management decisions by the Crown.\u00a0 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.[3]<\/a> This is also a highly litigious area of law.\u00a0 Since Haida Nation, <\/em>the Supreme Court of Canada\u2019s 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.<\/p>\n

 <\/p>\n

Background on the Decision Under Appeal <\/strong><\/p>\n

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.\u00a0 The legislation made changes to Canada\u2019s environmental assessment, navigable waters, fisheries, and species at risk laws.\u00a0 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.\u00a0 The federal government did not consult Aboriginal groups before this legislation was introduced or passed.<\/p>\n

In Rio Tinto, <\/em>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.[4]<\/a>\u00a0 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\u2019s treaty rights to hunt, fish, and trap.\u00a0 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.<\/p>\n

This decision was overturned by the Federal Court of Appeal after Justice De Montigny held that the entire legislative process \u2013 from the development of policy options to the drafting, introduction and passage of legislation \u2013 cannot trigger the duty to consult.\u00a0 He held that the Federal Court\u2019s decision was contrary to the well-established principle that courts will not intervene and provide relief until after legislation is enacted:<\/p>\n

With all due respect, the Judge erred by issuing that declaration.\u00a0 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\u2019s process and sovereignty, but it also fails to recognize that no court has ever claimed jurisdiction over the introduction of legislation in Parliament.\u00a0 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.[5]<\/a><\/p><\/blockquote>\n

In his reasons, Justice De Montigny noted significant practical considerations that militated against the recognition of such a duty holding that \u201cimposing 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.\u201d[6]<\/a><\/p>\n

In concurring minority reasons, Justice Pelletier decided the case more narrowly and held that the duty to consult is not triggered by \u201clegislation of general application whose effects are not specific to particular Aboriginal groups or to the territories in which they have or claim an interest\u201d, preferring to leave open the argument to another day about whether certain legislation of more limited application could trigger the duty to consult.<\/p>\n

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ARL\u2019s Position in the Appeal<\/strong><\/p>\n

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.<\/p>\n

In its factum<\/a>, 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:<\/p>\n

Accordingly, the duty to consult must be consistent with the underlying principles of the Constitution that comprise its internal architecture.\u00a0 The passage from the Secession Reference quoted above makes clear that these principles include those relating to the \u2018workings of Parliament\u2019, i.e., parliamentary sovereignty and the separation of powers.<\/p>\n

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. \u00a0Indeed, this Court has repeatedly emphasized \u2018Parliament’s sovereignty as a legislative and deliberative assembly\u2019, stating that \u2018Parliament’s sovereignty when engaged in the performance of its legislative duties is undoubted\u2019.\u00a0 Accordingly, \u2018[t]he formulation and introduction of a bill are part of the legislative process with which the courts will not meddle\u2019.<\/p>\n

The related principle of the separation of powers ensures that \u2018[t]he courts\u2026 are careful not to interfere with the workings of Parliament\u2019.\u00a0 It is well-established that there exists a clear \u2018need for its legislative activities to proceed unimpeded by any external body or institution, including the courts\u2019.\u201d (citations omitted)<\/p><\/blockquote>\n

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.\u00a0 ARL asserts that this compartmentalization of the legislative process into discrete, watertight stages to which different judicial standards are applied is impossible.\u00a0 It is also inconsistent with the Constitution\u2019s underlying principles and Supreme Court of Canada jurisprudence on the scope of parliamentary sovereignty and the separation of powers.<\/p>\n

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:<\/p>\n