Who gets to participate in making the rules that affect them, and to what degree? This is a fundamental question in Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311 (“MCFN”), an appeal of a judicial review proceeding. In MCFN, the core question is whether indigenous groups in Canada entitled to a role in drafting legislation that affects their treaty rights.
This case is unique in Canadian jurisprudence. Until now, cases regarding the duty to consult have been about the obligation to consult indigenous peoples in the course of making a regulatory decision. MCFN is the first time the courts have directly addressed whether the duty to consult extends to an obligation to consult in the course of making the legislation behind a regulatory scheme. The former is about consultation in applying the rules; the latter is about creating the rules.
The specific question posed by the court in MCFN at para. 2 was “does the Crown have an obligation to consult when contemplating changes to legislation that may adversely impact treaty rights, and if so, to what extent?” MCFN originated with two omnibus bills largely related to environmental matters introduced by the government into Parliament in 2012, C-38 and C-45. Both bills are now law. The MCFN believed that the effect of these bills would be to reduce federal oversight over the types of projects that were subject to environmental assessment, which in turn would remove the mechanisms for consultation and accommodation of indigenous rights.
The MCFN applied to the Federal Court for a judicial review. They sought injunctive and declaratory relief, including a declaration that Canada had a duty to consult when it developed the omnibus bills because they adversely affected their treaty rights. The MCFN did not seek review of the contents of the omnibus bills, decisions of MPs or committees during progress of the bills, or decisions of ministers in implementing the bills once they were law. Rather, they sought a review of the process prior to drafting and presenting the bills to Parliament. The MCFN named as respondents all those who they believed were responsible for developing the policy and drafting the bills prior to their introduction into Parliament.
Canada objected, arguing that the court did not have jurisdiction to review legislative action, rather than governmental action. It also argued that the decisions of the various ministers behind the bills were excluded from judicial review, because the Federal Courts Act, RSC 1985, c F-7, s. 2(1) and (2) limited judicial review to decisions of a federal board, commission, or other tribunal. The Federal Court agreed that this excluded the House of Commons, the Senate, and their committees; however, it found that because the MCFN was not challenging the contents of the bills, the deliberations of Parliament, or ministerial implementation of the bills once law, the proceeding did not fall under this exclusion. Rather, the court accepted that because the challenge was to the ministers’ decision making process in developing the bills prior to their coming before Parliament, s. 2(1) and (2) did not bar the proceeding.
The court then went on to state that, in general, there is no duty to consult before a bill is introduced into Parliament. It acknowledged that the principles of parliamentary sovereignty and the doctrine of the separation of powers (i.e. executive, legislative, and judicial functions of government) would largely preclude imposing such a duty on Parliament. This meant that while there could be no duty to consult before a bill is introduced into Parliament, treaty obligations or the honour of the Crown could trigger a duty to consult once the bills were introduced.
In this case, the court found that when the government introduced the omnibus bills into Parliament, it triggered a duty for Canada give the MCFN notice of the provisions of those bills that might have impacted them and provided them with an opportunity to make submissions. As the bills were now law, the court said a declaration requiring Canada to consult would be pointless. As a result, it only granted a declaration stating that there had been a duty on the Crown to give notice to the MCFN and that it should have provided reasonable opportunity to make submissions.
The Federal Court of Appeal set aside the declaration of the lower court and dismissed the MCFN’s application for judicial review. The majority found that the Federal Court lacked jurisdiction under the Federal Courts Act to decide the matter. Moreover, the majority said that the process leading up to the introduction of the bills Ministers’ actions during that process were legislative in nature. As the SCC stated in Ontario v. Criminal Lawyers Association of Ontario,  3 SCR 3, 2013 SCC 43, the courts cannot and will not interfere with the work of the federal and provincial legislatures. The courts can only intervene once the legislature’s work has been done. Therefore, it was not open to the court to intervene even at the stage where a bill is introduced into a legislature.
While the courts concluded that it could not intervene, it offered suggestions to both parties as to how matters might proceed in the future. On the governmental side, the court stated that it might be good politics for ministers to consult with stakeholders such as Aboriginal groups prior to introducing bills into Parliament that might affect them or their interests. On the First Nations side, they can lobby the government and Members of Parliament to ensure their interests are considered. While it may be that the court was merely trying to build bridges between the parties, I do not see how stating what the parties already know or do provided any solace.
The appeal MCFN (Chief Steve Courtoreille on behalf of himself and the members of the Mikisew Cree First Nation v. Governor General in Council, et al) will be – or was, based upon the Slaw publishing schedule – heard by the SCC on January 15, 2018. The court may have to take a fresh look at the doctrine of separation of powers, as there has been little if any consideration to how the constitutional duty to consult and how section 35 of the Constitution Act, 1982 fits within the parliamentary process. The case certainly promised to be one of the most significant duty to consult cases to come before the courts, both in terms of administrative law and Aboriginal law.
 Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19 and Jobs and Growth Act, 2012, SC 2012, c 31.