In the SCC’s most recent Aboriginal law case, Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, the question at issue was whether the Crown had a duty to consult Mikisew on the development of environmental legislation that had the potential to adversely impact their Treaty rights to hunt, trap and fish. The context for this was the failure of the Crown to consult Mikisew on two Omnibus bills (Bill C-38 and Bill C-45) which repealed the Canadian Environmental Assessment Act,1992, replacing it with a new environmental assessment regime under CEAA 2012, and made significant amendments to the protection regime under the Fisheries Act, as well as amendments to the Species at Risk Act, the Navigable Waters Protection Act, and Navigation Protection Act. Mikisew were not consulted on either of the omnibus bills at any stage of their development before they became law.
Mikisew argued that the development of policy by ministers leading to the formulation and introduction of a bill that may affect section 35 rights triggers the duty to consult (para. 30). The Federal Court had ruled the First Nation was entitled to be consulted which included an opportunity to provide submissions, but this ruling was overturned by the Federal Court of Appeal. After holding that the Federal Courts did not have jurisdiction to answer these questions (because their jurisdiction is limited to where relief is claimed against the Crown, but this does not extend to executive actors when they are exercising legislative power; and, when Cabinet and ministers develop legislation, they are acting in a parliamentary capacity and are immune from judicial review under the Federal Courts Act) the Supreme Court of Canada took on the job of answering the question: Does the duty to consult apply to the law making process?
The majority of the Supreme Court held that no aspect of the law-making process – from the development of legislation to its enactment – triggers a duty to consult (para. 50). In so ruling, the Court held that duty to consult does not apply to Ministers acting in their legislative or Parliamentary capacity during the law-making process, when they develop laws that may adversely impact section 35 constitutionally protected rights (para. 2). However, the duty to consult may still arise when Ministers act in their executive capacity and apply the laws they enact, and when statutory decisions are made during the application of legislation which may adversely impact section 35 Aboriginal and Treaty rights.
That Ministers wear two hats – an executive hat when applying the laws they make and a legislative hat when developing these laws – is an important distinction to take from the case – because the ruling does not mean that environmental assessment and other laws, made by the legislature will not adversely affect Treaty and Aboriginal rights. It just means that the courts do not want to supervise the legislature and Parliament during the process of making laws (para. 34) under the guise of the duty to consult so as to prevent those laws from being made in a way that adversely affects section 35 rights. Nor do courts want to intervene and meddle with the law-making process in order to evaluate whether the legislature complied with the duty to consult during the development of the law, or after the fact (para. 38) because the development of legislation by ministers is part of the law-making process “and this process is generally protected from judicial oversight” (para. 34).
What this practically means, is that there is more room for legislatures to make errors and to enact legislation that may, during the application of the legislation, adversely impact Treaty and Aboriginal rights. However, the decision is basically the Supreme Court of Canada’s way of saying – let the legislature make its laws, and First Nations cannot challenge the way that those laws are made by saying they breached the duty to consult in relation to the law-making process, because courts don’t want to intervene in the process of how the legislature makes laws (paras. 34-35). However, even though the duty to consult does not apply during the law-making stage, if and/or when the legislation is applied so as to adversely impact section 35 rights – the courts, in their supervisory role, will step in to ensure compliance with section 35 of the Constitution and the duty to consult.
This is part of what the Supreme Court meant when it said that it’s ruling – does not leave First Nations without a remedy (para.3). While First Nations will not have a remedy based on breach of the duty to consult respecting legislative decisions during the law-making process – it remains open to them to bring an action that legislation infringes their rights and section 35 of the Constitution (Sparrow). However, this would be an infringement case after the law has been passed, not a duty to consult case based on what happened prior to the law being passed during its development. It is also open to First Nations to challenge the application of legislation and laws, on the basis that executive decisions made by Ministers or statutory decision-makers under legislation, adversely impacts their section 35 Treaty and Aboriginal rights. The courts remain willing to supervise the application of legislation, so as to ensure compliance with section 35 and the duty to consult on the ground. They just won’t apply the duty to consult to require consultation on the development of the laws, and the law-making process – even if the laws that are being developed have the potential to adversely impact Aboriginal and Treaty rights. However, the Supreme Court also left open the possibility that First Nations may be able to challenge legislation which may adversely affect Aboriginal and Treaty rights – not based on the duty to consult in the law-making process, but based on Crown honour, by leaving this question for another day (para. 3).
In its decision, the Supreme Court said that – just because the law-making process itself does not constitute “Crown conduct” that triggers the duty to consult – does not mean that Aboriginal groups will be without a remedy when legislation undermines section 35 rights (paras. 2-3). In this respect, the court said “the Crown’s honour may well require judicial intervention where legislation may adversely affect – but does not necessarily infringe – Aboriginal or treaty rights”, (para. 3) but left this question for another day. This suggests that the judiciary may be willing to intervene in relation to legislation in future cases – not on the basis of the duty to consult but on the basis of the principle of Crown honour – where legislation may adversely affect Aboriginal or Treaty rights.
The Supreme Court elaborated on this possibility later in its decision, by stating that “For example, it may not be consistent with s.35 to legislate in a way that effectively removes future Crown conduct which would otherwise trigger the duty to consult” (para. 46). Then, in support of this point, the court noted that – in Ross River Dena Council v. Yukon, 2012 YKCA 14, the Appellate Court held that “[s]tatutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist” (para. 37 of that decision). In Ross River, which was about the deficiency of the Yukon’s legislative regime respecting mining exploration and claim staking in relation to asserted section 35 Aboriginal rights and title – the Yukon Court of Appeal held that the since the Yukon’s legislative regime allowed mineral claims to be granted without regard to asserted Aboriginal title, and allowed exploratory work that may adversely affect Aboriginal rights to be carried out without consultation – “In order for the Crown to meet its obligations, it must develop a regime that provides for consultation commensurate with the nature and strength of the Aboriginal rights or title claims and with the extent to which proposed activities may interfere with claimed Aboriginal interests” (paras.6-7).
In addition to the Supreme Court of Canada citing the Ross River case in relation to its point that it may not be consistent with s.35 to legislate in a way that does not uphold the honour of the Crown – the Court also cited section 52 of the Constitution Act, 1982, which provides in subsection (1) that “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This suggests that, in future cases, the Supreme Court may be willing to apply the honour of the Crown under section 35, along with section 52 of the Constitution in relation to deficient legislative regimes (they just don’t want to apply the duty to consult as the method by which to legally challenge the sufficiency of the law-making process and development of legislation in Canada).
The Court stated that, as opposed to the doctrine of the duty to consult, the doctrine of the honour of the Crown may be developed further to ensure the protection of section 35 rights in relation to the review of legislation (para. 45). In this respect, the Court stated “For example, it may not be consistent with s.35 to legislate in a way that effectively removes future Crown conduct which would otherwise trigger the duty to consult.” (para. 46). This means that if there are effective changes to legislation which takes away Crown conduct and/or decision-making which would have otherwise been a trigger for the duty to consult – this may not be honorable and may be subject to future challenge by First Nations on the basis of not upholding Crown honour. As such, practically speaking, when legislatures consider developing things like “results-based” regulatory regimes (where legislation removes Crown decision-making in relation to resource development which may otherwise trigger consultation) there is still a potential ability for First Nations to challenge these laws on the basis that they do not uphold Crown honour.
The court then goes further, on the point that the duty to consult is not the only means to give effect to the honour of the Crown when Aboriginal or Treaty rights may be adversely affected by legislation – and says that “Other forms of recourse may also be available. For example, declaratory relief may be appropriate in a case where legislation is enacted that is not consistent with the Crown’s duty of honourable dealing toward Aboriginal peoples”; and, moreover, “declaratory relief may be an appropriate remedy even in situations where other forms of relief would be inconsistent with the separation of powers” (para. 47). Declaratory relief is another form of potential relief and recourse that is not dependent on the duty to consult. In addition, legislation can also still be declared invalid if it infringes s. 35 without justification, and decisions made under legislation may still adversely impact s.35 rights, triggering the duty to consult.
In making these statements – the Supreme Court is not saying that the honour of the Crown does not need to be upheld in relation to section 35 rights, when making legislation – it is saying that the duty to consult is the wrong doctrine to apply in relation to the constitutionality of the law-making process. This accords with previous jurisprudence which confirms that the honour of the Crown applies to all dealings with Aboriginal peoples, and the principle that Constitutional compliance remains imperative.
What the Court is doing in this case is preventing the doctrine of the duty to consult from applying to the legislative process, as a basis upon which law-making and the development of laws can be challenged. However, the Supreme Court’s rejection of the doctrine of the duty to consult to the law-making process, in relation to adverse impacts to Aboriginal and Treaty rights – has not yet ousted the doctrine of the honour of the Crown from applying to law-making in relation to s.35 rights. In closing the duty-to-consult door; the Court is leaving open the possibility of the honour-of-the-Crown window, in relation to developing laws which may affect Aboriginal and Treaty rights.
That said, the focus of the Court’s decision, which rejects the doctrine of the duty to consult from applying to the law-making process – is premised on confirming principles of Constitutional law in relation to Canadian democracy which is based on the separation of powers and parliamentary sovereignty, (para. 2) which means that the judiciary’s role is generally not to meddle in supervising how the legislature makes legislation (paras. 34-35). Underlying this decision, is concern for upholding the rule of law in Canada, where democracy is based on the division of powers between the judiciary, the executive and the legislature, and the ability of Parliament to freely develop and enact laws. In its decision, the SCC is confirming that the primary role of the courts – as the judiciary – is not to meddle or interfere with the law-making process which is a legislative function that is within the realm of Parliament and Ministers acting in their Parliamentary capacity as they develop legislation. In an effort to avoid judicial activism – where courts scrutinize and tell the legislature what kind of laws they should or could be making based on the application of the duty to consult – the judiciary is giving Parliament the first shot at getting it right, without directly supervising the process of how laws are made on the basis of the application of the duty to consult to the development of legislation.
However, this does not mean that constitutionally invalid laws can stand. To the contrary, legislation can still be challenged if it infringes section 35, and the application of legislation can still be challenged can the basis that decisions made under the legislation adversely impact Aboriginal and Treaty rights, on the basis of breach of the duty to consult and accommodation. The application of legislation which may adversely impact Aboriginal and Treaty rights is still part of the duty to consult within Canada.
The unfortunate part about what this decision does – is that puts the burden on First Nations to challenge the application of legislation that adversely impacts Treaty and Aboriginal rights, on a decision-by-decision, case-by-case basis, in relation to the duty to consult – rather than allowing First Nations to be part of the solution in developing these regimes during the law-making process, so that there is less likelihood that they will adverse impact Aboriginal and Treaty rights in the application of the legislation. The decision also puts the burden of costly infringement lawsuits on the backs of First Nations, that may have been avoided had there been consultation on section 35 rights when the laws were being developed.
In an effort to maintain the division of powers upon which Canadian democracy is based (between the judiciary, legislature and executive branches of government), this decision fails to recognize the important role that First Nations have as governments in this land. We are still quite a far way away from achieving a level of reconciliation under the law in Canada that is based upon recognizing First Nations role in governance within our constitutional order – and the traditional division of powers has not yet evolved so as to recognize, respect and protect the role of Aboriginal peoples in law-making over the environment and resources upon which their Aboriginal and Treaty rights depend.
However, in saying this, the Court does leave open a few other “windows” in this case. Even though the court is unwilling to supervise the development of legislation from a duty to consult perspective – the Supreme Court in its decision, still acknowledged that just because there is no application of the legal duty to consult on the development of legislation, that this should not “be seen to diminish the value and wisdom of consulting Indigenous peoples prior to enacting legislation that has the potential to adversely impact the exercise of Aboriginal or treaty rights” (para. 145). In addition, the degree of consultation during the legislative process, including respecting the formulation of policy, is an important consideration when assessing whether legislation infringes section 35 rights, during the justification analysis (Ibid.). However, the absence or inadequacy of consultation will only be considered by the judiciary after the legislation has been enacted, if there is a challenge brought under section 35 to the substance or effects of the legislation. In other words, while First Nations cannot challenge the legislative process leading to and including the enactment of legislation on the basis of a breach of the duty to consult in the law-making process – they may still challenge the substance of the legislation enacted for infringement of section 35 rights, and may still challenge the application of the legislation, on the basis of breach of the duty to consult from decisions which may adversely impact Treaty and Aboriginal rights or title.
Despite confirming that there is no legal duty to consult on the law-making process – the Supreme Court confirmed that its conclusions respecting the inapplicability of the duty to consult to the law-making process does “not apply” to the process by which subordinate legislation (such as regulations or rules) is adopted – as this conduct is clearly executive, rather than legislative or parliamentary (para. 51). This is significant. In this respect, we can still expect to see Aboriginal peoples being consulted on the process of developing policies and rules, and making regulations about how legislation is to be implemented – as this is not beyond the reach of the duty to consult doctrine.
It is also worthwhile to note that this decision, interpreted consistently with its intent – in no way restricts First Nations from negotiating in modern Treaty processes for requirements to be consulted on regulatory changes that may adversely affect their Treaty rights as the Supreme Court confirmed that its conclusion on the inapplicability of the duty to consult to the law-making process “does not affect the enforceability of treaty provisions, implemented through legislation, that explicitly require pre-legislative consultation” (Ibid.). It remains open for the parties to agree to consultation regimes, prior to legislative changes and regulatory overhauls, as a part of modern Treaty negotiations – and in any event, the legal duty to consult still applies to the development or changes to regulations under new, existing or amended legislation, which may adversely impact section 35 Aboriginal and Treaty rights.
Overall, as to the practical implications of this decision, in terms of confirming that there is no legal requirement for consultation on the development of legislation, this decision does not prevent potential adverse impacts to rights by requiring that they be considered during the development of legislation. This may result in disharmony and adverse impacts to section 35 rights down the road, during the application of the legislation, which could have been prevented, had First Nations been consulted when the legislation was being developed. However, this may be mitigated to some degree from the application of the duty to consult – which still applies to the development of regulations under legislation in relation to potential adverse impacts.
Finally, to the extent that governments do exercise their wisdom to consult First Nations on the development of legislation which could infringe or potentially adversely affect Treaty and Aboriginal rights – because it is the prudent thing to do in order to avoid impacts to rights during the application of the law down the road (and to avoid infringement lawsuits), the public interest will be well served, and reconciliation may still be possible. Similarly, it is important to recall that the extent of any consultation remains a relevant consideration with respect to assessing whether an enactment is consistent with constitutional principles, when looking at whether legislation infringes a section 35 right, and determining whether the legislation or action can be justified and is within the honour of the Crown – “whether the Aboriginal group in question was consulted on the impunged measure” is an important part of that inquiry (para. 48). In this respect, there remains legal risk in choosing not to consult, when there is potential for legislation that is developed to infringe upon section 35 rights.