Do members of Parliament who are developing legislation that might affect aboriginal or treaty rights have a duty to consult with the bearers of those rights? According to Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, the answer is no. Beyond this point, however, the case leaves some big questions unsettled. In this comment I’ll summarize the court’s decision, note some concerns about the court’s reasoning and then speculate on where the law might go next.
The case arose out of two omnibus bills passed by Parliament in 2012. Among other things, these bills made major changes to Canada’s environmental protection regime: changes which, the Mikisew argued, would undermine their rights to hunt, trap and fish under Treaty No. 8. By reducing the range of projects that needed to go through approval procedures – procedures which gave the Mikisew the chance to advocate for the protection of their treaty rights – the bills had the potential to undermine those rights.
The Mikisew argued that, since the ministers responsible for these bills were considering action that they knew could impact treaty rights, the ministers had a duty to consult with the Mikisew about the bills. At no point in the lawmaking process did this happen. So the Mikisew brought an action in Federal Court and obtained a declaration that the Crown had a duty to consult with them when the bills were introduced into Parliament. This declaration was overturned by the Federal Court of Appeal, and the Mikisew appealed to the Supreme Court.
The duty to consult and the lawmaking process
There are four sets of reasons from the Supreme Court, so it’s not easy to determine exactly what the case stands for. All nine judges agreed, however, that the Federal Court lacked jurisdiction to hear the Mikisew’s claim, and that the claim should be dismissed on this basis. On its own, of course, this would just mean the Mikisew should have gone to Superior Court instead. So the court went on to address the substantive question of whether the duty to consult applies to ministers who are developing legislation.
The Mikisew had argued that, when developing legislation, ministers are acting in an executive capacity, not a legislative one. But this distinction is hard to sustain. Developing legislation is part of the lawmaking process: when ministers do this, they’re acting as members of Parliament, not exercising power granted to them by Parliament. The real question, then, is whether the duty to consult applies to the lawmaking process.
Karakatsanis J. (with Wagner C.J. and Gascon J. concurring), holds that “the law-making process – that is, the development, passage, and enactment of legislation – does not trigger the duty to consult” (para. 32). In other words, bearers of s. 35 rights have no right to be consulted when a legislature contemplates legislation that might impact those rights. In their separate reasons, both Brown J. and Rowe J. (with Moldaver and Côté JJ. concurring) agreed, making for a seven-judge majority on this point.
Three constitutional principles dictate this result. First, the separation of powers between legislative, executive and judicial branches of government means that courts should avoid interfering with the lawmaking process, getting involved only once a law is enacted. Second, the principle of Parliamentary privilege allows Parliament to control its own process, without oversight from the courts. Enforcing a duty to consult would interfere with this privilege. Third, Parliamentary sovereignty means that, within constitutional limits, Parliament can make or unmake whatever laws it wants. (I’m not sure this last one cuts much ice, though: the whole question in this case is what the constitutional limits are.) For all these reasons, the duty to consult does not apply.
Abella J. (with Martin J. concurring) disagrees, writing that the duty to consult is “based on the effect, not the source, of the government action” (para. 55): what difference does it make to rights-bearers whether their rights are impacted by executive action or by legislation? Moreover, the duty to consult arises out of the honour of the Crown: if the duty to consult did not apply to the lawmaking process, this would leave a ‘void’ in the honour of the Crown. More concretely, there would be a gap in the law protecting s. 35 rights. Both unproven aboriginal rights and discretionary rights under treaties (such as taking up land) are protected against executive action by the duty to consult, but they would not be protected against legislation.
The gap in the law
Whether there is a gap in the law, and what might fill the gap, are the big questions this case leaves unsettled. In his reasons (which are approved in the reasons of Rowe J.), Brown J. denies that there is a gap. The honour of the Crown applies only to Crown conduct – but “the Crown does not enact legislation. Parliament does.” This is because “the Crown” is a name for executive power, and Parliament’s power is not executive but legislative. Therefore, the honour of the Crown “does not bind Parliament” (para. 135). In the view of Brown J., the fact that the honour of the Crown does not bind Parliament is not a gap in the law but a consequence of basic principles.
Supposing this is correct, it seems to me that there is room for a deeper worry. The fundamental purpose of s. 35 is not the honour of the Crown but the reconciliation of “the prior presence of aboriginal peoples in North America with the assertion of Crown sovereignty.” In this sense, “Crown sovereignty” surely includes Parliament’s power to impose laws on territory previously governed under aboriginal legal orders. This suggests that Parliament’s legislative power also needs to be reconciled with these legal orders. And so it seems unsatisfactory that Parliament can legislate in a way that impacts unproven aboriginal rights, or that it can oblige the executive to take up lands under treaties, without any constraint.
In any event, Karakatsanis J. is clearly concerned by the apparent gap in the law. To address it, she writes that while the duty to consult doesn’t apply to the lawmaking process, “[o]ther doctrines may be developed to ensure the consistent protection of s. 35 rights and to give full effect to the honour of the Crown” (para. 45). Given that both Brown and Rowe JJ. strongly object to Karakatsanis J.’s suggestion of other doctrines, and Abella J. does not comment on it, there is no majority in favour of developing these doctrines. But it’s worth considering what these doctrines might be.
Filling the gap
The duty to consult is only one part of the legal framework protecting s. 35 rights. The other major part of the framework is the protection of those rights against infringement under R. v. Sparrow. And this is one place where legislative consultation is, though not required, encouraged by the law. As Karakatsanis J. notes, “the extent of any consultation may well be a relevant consideration…when assessing whether the enactment is consistent with constitutional principles” (para. 48; see also Rowe J., at para. 155). It seems likely that the courts would look hard at a replacement for (say) the Indian Act that was carried out without widespread consultation.
Karakatsanis J. makes another suggestion: “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” (para. 47). The suggestion seems to be that legislation might be inconsistent with the honour of the Crown without infringing a s. 35 right. It’s not clear when this would occur, but perhaps it might be when the right in question is asserted but not yet proven. This suggestion is subject to tough criticism by Brown J., who argues that without a s. 35 right infringement, there would be nothing for a court to remedy, “unless the duty to consult flowing from the honour of the Crown is itself being treated as applicable to the law-making process” (para. 141), with all the constitutional problems this entails.
Let me end with one more idea – not found in the court’s decision – which wouldn’t entail similar constitutional problems. Aboriginal and treaty rights (proven or unproven) might play an interpretive role. If Parliament wants to pass a law that impacts, without infringing, such rights, it can do so: but it has to express its intention clearly. If an intention to impact s. 35 rights is not clear, courts should presume that Parliament intended to give the rights their full scope, and should interpret the law to avoid an impact on them. (In UK public law, this is known as the principle of legality. Compare how in Canada, the honour of the Crown requires courts to presume that the Crown intended to keep its promises. Or how, before 1982, the Crown could only extinguish aboriginal rights with a “clear and plain” intention.) While Parliament would remain free to legislate, it would be forced to confront the impact of its legislation on s. 35 rights.
 The Jobs, Growth and Long-Term Prosperity Act, S.C. 1992, c. 37 and the Jobs and Growth Act, 2012, S.C. 2012, c. 31.
 As a general rule, the Crown has a duty to consult when it is contemplating action that it knows, or ought to know, could have an impact on aboriginal or treaty rights: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para. 35; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, at para. 55.
 See Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, at para. 73.
 Delgamuukw v. British Columbia,  3 S.C.R. 1010, at para. 141.
  1 S.C.R. 1075.
 This is explained by Lord Hoffman in R. v. Secretary of State for the Home Department; Ex parte Simms,  UKHL 33 as follows: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.” In Canada, a similar rule was incorporated into the Canadian Bill of Rights, S.C. 1960, c. 44, section 2.
 See R. v. Sparrow,  1 S.C.R. 1075.
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