The Crown has no duty to consult when legislating… for now

By Supriya Tandan January 11, 201711 January 2017

The Crown has no duty to consult when legislating… for now


A recent decision by the Federal Court of Appeal confirms that governments enjoy relative freedom when developing legislation, even when laws may impact traditional aboriginal rights. The decision at issue stems from legislative activity taken by the previous Harper government when it introduced bills C-38 and C-45 — both controversial on account of its reliance on omnibus budget bills to make major statutory reform, which critics charged were not subject to adequate parliamentary scrutiny.

Though the bills courted public discontent, protests and eventually spurred the Idle No More movement, there has been relatively little court action on these “behemoth” budget bills. That changed in Courtoreille v. Canada, an application for judicial review of C-38 and C-45 filed by Chief Steve Courtoreille and members of the Mikisew Cree First Nation.

In their application, Chief Courtoreille and the Mikisew Cree state that the purpose of the billsare to reduce federal oversight in environmental matters.

They argue that the government knows or ought to know that reduced federal oversight of waters, fish habitat and species at risk (as found in the Navigation Protection Act, Fisheries Act and Species at Risk Act) would likely hamper the ability of the Mikisew to fish, hunt and trap — rights guaranteed under Treaty 8. They asked the court to declare that the government breached its duty to consult the Mikisew Cree regarding the environmental provisions of the bills.

Now lawyers for the Trudeau government contend that the legislative process is indivisible and therefore cannot be subject to judicial review. The application should be denied, they argue, as it does not meet the procedural constraints as found in the Federal Courts Act and that judicial review of legislation would violate the doctrine of the separation of powers which gives the government parliamentary privilege to legislate as it sees fit.

The Federal Court of Appeal agreed with the government, but not without considering the application on its merits. Writing a concurring opinion, Justice Pelletier makes a distinction between legislation of general application and legislative action impacting a specific aboriginal community. He writes at para 97 that since C-38 and C-45 were of general application they do not trigger the duty to consult:

This is not to minimize the Crown’s obligations to Aboriginal peoples in circumstances where their particular interests are liable to be affected. I accept that the consultation process may not always be easy and that it may sometimes be difficult and time consuming. So be it. That is the price of meeting the obligations which Canada has to its Aboriginal peoples. But the threshold at which the duty to consult arises cannot be set so low that it is triggered by legislative action which is not aimed at specific Aboriginal groups or to territories in which they have, or claim, an interest. The duty must be found in the decisions by which such legislation is operationalized.

It is not clear if the Federal Court of Appeal will have the final say in this matter –in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the Supreme Court of Canada left open the question on the duty to consult on legislation. Further, as Carpenter, Bakker and Millen write for Blakes, the Trudeau government’s arguments against aboriginal consultation on legislation or at odds with pledges it has made on the international stage:

Another noteworthy aspect of the appeal is the federal government’s position. While it was the former Conservative government that introduced and passed Bills C-38 and C-45, the appeal was not argued until 2016. Given this, it was the current federal government that continued to argue that the duty to consult does not extend to the legislative process. This is interesting as it could be argued that this position conflicts with the provisions of the United Nations Declaration of the Rights of Indigenous Peoples on the role of Indigenous Peoples in the development of legislation that might affect them — provisions that the new government expressly adopted earlier in the year.

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