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Justice Abella's unified theory on constitutional supremacy and reconciliation

In the recent case of Mikisew Cree, the Supreme Court of Canada had a fresh opportunity to engage with constitutional principles affirming Indigenous rights and determine how the duty to consult applies during the legislative process. Instead, the decision seems like a regression for reconciliation.


Mikisew Cree has been well summarized and critiqued elsewhere. With four separate sets of reasons, the court ultimately dismissed the appeal on jurisdictional grounds. But a majority of the court held that federal Ministers do not owe a duty to consult Indigenous groups when developing legislation that may adversely impact their rights.

Only one set of reasons presents a unified theory of how constitutional supremacy and reconciliation affect the law-making process. These are the reasons of Justice Rosalie Abella, with Justice Sheilah Martin concurring. They agreed with the majority on the jurisdictional issue, but disagreed on the duty to consult.

“Because the honour of the Crown infuses the entirety of the government’s relationship with Indigenous peoples, the duty to consult must apply to all exercises of authority which are subject to scrutiny under s. 35” of the Constitution Act, 1982, Justice Abella wrote, including “the enactment of legislation.” Justices Abella and Martin would have confined the duty to consult in the legislative context to situations “where the Crown, with knowledge of the potential existence of the Aboriginal right or title in question, contemplates enacting legislation that might adversely affect it.”

Undoubtedly, this conclusion would have practical consequences for the law-making process, at the federal and provincial levels. But if we’re serious about reconciliation, we must be prepared for processes that might look different, take longer, and lead to unplanned results. (And, of course, Indigenous communities must also be able to make their own laws.) As I have argued before, “Canada’s constitutional framework is flexible enough to challenge preconceived notions about how our governing and judicial bodies should look, so it is flexible enough to accommodate Aboriginal communities as equal partners in the framework.”

Justice Abella saw the irony in her colleagues’ reliance on parliamentary sovereignty as a reason to answer “no” to the duty to consult question, citing R v Sparrow:

In Sparrow, the Court found it impossible to conceive of s. 35 as anything other than a constitutional limit on the exercise of parliamentary sovereignty (p. 1109). It seems to me quite ironic that parliamentary sovereignty would now be used as a shield to prevent the Mikisew’s claim for consultation. With respect, such an approach reactivates the happily silenced spirit of St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.), where Aboriginal rights were “dependent upon the good will of the Sovereign” (p. 54).

The fact that these rights are political in implication does not detract from their enforceability in law, but highlights their essential role in reconciling Aboriginal and Crown sovereignty. Our Constitution places a responsibility on the executive and legislative branches, along with Indigenous leaders, to collaborate and reconcile competing claims and historical grievances (Dickson, at p. 146). […] Unilateral action is the very antithesis of honour and reconciliation, concepts which underlie both the duty to consult and the very premise of modern Aboriginal law (Mitchell, at para. 11). [emphasis in original]

Parliament’s traditional law-making process cannot override the requirements of our Constitution — the “supreme law of Canada.” An essential part of the Constitution is the explicit recognition and affirmation of Indigenous rights, in section 35 of the Constitution Act, 1982. This provision, as we know from R v Van der Peet, is “directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”

Justices Abella and Martin appreciated how these pieces of the constitutional puzzle should fit together. Hopefully, their unified theory will inspire a future court, with proper jurisdiction, to revisit the issue of how the duty to consult applies during the legislative process.

The principle of constitutional supremacy and the ongoing work of reconciliation cannot be cast aside when the duty to consult reaches Parliament Hill.