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Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

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Constitutional Law — Aboriginal Treaty Rights – Crown Duty to Consult

In this decision, the Supreme Court of Canada (“SCC”) considered an appeal by the Mikisew Cree First Nation from the judgment of the Federal Court of Appeal (“FCA”) in Canada (Governor General in Council) v. Mikisew Cree First Nation, 2016 FCA 311 (the “FCA Decision”).

The SCC dismissed the appeal (upholding the FCA Decision) on the grounds that judicial review to the Federal Court under the Federal Courts Act was not available for the actions of federal ministers in the parliamentary process.

The nine members of the SCC panel were unanimous in the result that the appeal should be dismissed on the grounds that judicial review under the Federal Courts Act was not available. However, the Court was divided with respect to the issues regarding the Crown’s duty to consult as part of the law-making process.


The Mikisew is a band within the meaning of the Indian Act, whose traditional territory is situated primarily in northeastern Alberta.

The Mikisew are descendants of First Nations that signed Treaty No. 8 (“Treaty 8”) with the Crown. Under Treaty 8, the Aboriginal signatories ceded large amounts of land-across northern Alberta, British Columbia, Saskatchewan, and the southern portion of the Northwest Territories. The lands were ceded to the Crown in exchange for certain guarantees including protecting the right of the signatories to hunt, trap, and fish.

In April 2012, two pieces of omnibus legislation with significant effects on Canada’s environmental protection regime were introduced into Parliament. The Mikisew were not consulted on either of these omnibus bills at any stage in their development or prior to the granting of royal assent.

Federal Court Decision

The Mikisew brought an application for judicial review in the Federal Court under ss. 18 and 18.1 of the Federal Courts Act, seeking various declarations and orders concerning the Minister’s duty to consult them with respect to the introduction and development of the omnibus bills. The Mikisew argued that the Crown had a duty to consult them on the development of the legislation since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8. For the reasons set out in Mikisew Cree First Nation v. Canada (Minister of Aboriginal Affairs and Northern Development), 2014 FC 1244, the reviewing judge granted a declaration to the effect that the duty to consult was triggered and that the Mikisew were entitled to notice of the relevant provisions of the bills, as well as an opportunity to make submissions.

Federal Court of Appeal Decision

On appeal, a majority of the FCA concluded that the reviewing judge erred by conducting a judicial review of legislative action contrary to the Federal Courts Act. The majority held that when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review. The FCA found the reviewing judge’s decision to be inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. Further, imposing a duty to consult in the legislative process would be impractical and would fetter Parliament’s law-making capacity.

The Mikisew appealed the FCA Decision to the SCC.

The SCC Decision

The SCC was unanimous in its agreement with the FCA’s conclusion that the Federal Court lacked the jurisdiction to consider the Mikisew’s judicial review application, based on the following:

(a)     For the Federal Court to have jurisdiction over a claim, it must have a statutory grant of jurisdiction (citing Windsor (City) v. Canadian Transit Co., 2016 SCC 54), at para 34).

(b)     Two potential statutory grants of jurisdiction were at issue in this appeal, namely sections 17 and 18 of the Federal Courts Act.

Section 17 of the Federal Courts Act:

(a)     Section 17(1) provides that the “Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.” Further, s. 2(1) of the Act defines the Crown as “Her Majesty in right of Canada.”

(b)     Her Majesty in right of Canada does not extend to executive actors when they are exercising “legislative power” (citing Fédération Franco-Ténoise v R, 2001 FCA 220 at para 58).

(c)     Here, the Mikisew challenged actions that were legislative in character.

(d)     It followed that the Mikisew’s judicial review application was not against “the Crown” in its executive capacity and, therefore, the Federal Court lacked jurisdiction under section 17 of the Federal Courts Act to consider the Mikisew’s claim.

Section 18 of the Federal Courts Act:

(a)     Sections 18 and 18.1 only grant the Federal Court jurisdiction to judicially review action taken by “any federal board, commission or other tribunal.”

(b)     A “federal board, commission or other tribunal” is defined in section 2, subject to certain exceptions, as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown.

(c)     Section 2(2) specifically excludes the “Senate, the House of Commons, any committee or member of either House.” – and is designed “to preclude judicial review of the legislative process at large.”

(d)     As such, when developing legislation, ministers do not act as a “federal board, commission or other tribunal” within the meaning of section 2.

Justice Karakatsanis held that the Federal Courts Act does not allow for judicial review of parliamentary activities. Cabinet and ministers do not act pursuant to statutory powers when developing legislation; but rather, pursuant to their legislative powers under Part IV of the Constitution Act, 1867.

Duty to Consult

As noted, the Court was divided with respect to the issue of whether the duty to consult applies to the law-making process.

While the panel members all considered it important to consider this issue in the circumstances, the Court was split in its reasons and result. A majority of the Court determined, in three separate sets of reasons, that forming and passing legislation does not trigger the duty to consult. Where the majority disagreed was the extent to which the courts can limit or restrict Parliament’s power to pass legislation. A minority of the Court found that enacting legislation with the potential to adversely affect Aboriginal rights did give rise to a duty to consult, and legislation enacted in breach of that duty could be challenged directly for relief.

Reasons of Karakatsanis J. (Wagner C.J. And Gascon J. Concurring)

Justice Karakatsanis held that the honour of the Crown did not give rise to a justiciable duty to consult when ministers develop legislation that could adversely affect the Mikisew’s treaty rights. The law-making process — the development, passage, and enactment of legislation — does not trigger the duty to consult. In her view, the separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the law-making process, such as was the case here. Justice Karakatsanis described the duty to consult doctrine as being “ill-suited for legislative action.”

Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority.

Justice Karakatsanis found that:

(a)     recognizing that a duty to consult applied during the law-making process might require courts to improperly trespass onto the legislature’s domain; and

(b)     recognizing that the elected legislature had specific consultation obligations might constrain it in pursuing its mandate and therefore undermine its ability to act as the voice of the electorate.

Justice Karakatsanis found that the related doctrine of parliamentary privilege excluded the law-making process from the reach of judicial interference. Parliamentary privilege protects control over “debates or proceedings in Parliament.” The existence of this privilege generally prevents courts from enforcing procedural constraints on the parliamentary process.

Justice Karakatsanis also addressed the practical concerns that applying a duty to consult to the development of legislation by ministers would raise:

(a)     If changes were made to a proposed bill to address concerns raised during consultation, these changes could later be undone by Parliament, as it is free to amend the proposed law. This might limit the possibility of meaningful accommodation.

(b)     Private member bills would not trigger the duty, rendering the approach incongruous.

(c)     In the long chain of events contributing to the development of legislation, disentangling what steps the duty to consult applied to (because they are executive) and what actions were immune (because they were parliamentary) would be an enormously difficult task.

Justice Karakatsanis concluded that no aspect of the law-making process, from the development of legislation to its enactment, triggers a duty to consult.

She clarified that this conclusion was not to suggest that Aboriginal groups would be left without a remedy if the enactment of legislation undermined section 35 rights. Justice Karakatsanis affirmed that if legislation infringes section 35, it may be declared by the courts to be invalid pursuant to section 52(1) of the Constitution Act, 1982.

Reasons of Abella J. (Martin J. Concurring)

In Justice Abella’s view, the enactment of legislation with the potential to adversely affect rights protected by section 35 of the Constitution Act, 1982 does give rise to a duty to consult, and legislation enacted in breach of that duty may be challenged directly for relief.

Reasons of Brown J.

Brown J considered that the reasons of Justice Karakatsanis were “less than categorical” in accepting that parliamentary privilege and the separation of powers preclude judicial imposition of the duty to consult.

Justice Brown held that:

(a)     Categorically, the development, introduction, consideration and enactment of bills is the exercise of legislative authority, and is not Crown conduct – i.e., executive conduct – which triggers the duty to consult. The Crown does not enact legislation, Parliament does.

(b)     The absence or inadequacy of consultation may be considered only once the legislation at issue has been enacted, and then, only in respect of a challenge under s. 35 to the substance or the effects of such enacted legislation, as opposed to a challenge to the legislative process.

Justice Brown found that the reasons of Justice Karakatsanis unnecessarily left open the possibility that legislation which does not infringe s. 35 rights but may “adversely affect” them, might be found to be inconsistent with the honour of the Crown. Brown J. considered it inappropriate to raise the possibility that legislation which adversely affected section 35 rights might be declared inconsistent with the honour of the Crown and that it would undercut the principles of separation of powers and parliamentary privilege. Further, Brown J. considered that this would cast the law into considerable uncertainty, with deleterious effects on Indigenous peoples, and on all who rely upon the efficacy of validly enacted and constitutionally compliant laws.

Reasons of Moldaver J (Côté and Rowe JJ Concurring)

Writing for himself, Côté, and Rowe JJ, Justice Moldaver affirmed the reasons of Brown J. In addition, he addressed three further points:

(a)     The fact that the duty to consult had not been recognized as a procedural requirement in the legislative process would not leave Aboriginal claimants without effective remedies once legislation is enacted (citing R v Sparrow; [1990] SCR 1075, Haida Nation).

(b)     Recognizing a constitutionally mandated duty to consult during the process of preparing legislation would be highly disruptive to the carrying out of that work and could effectively grind the day-to-day internal operation of government to a halt.

(c)     Recognizing a duty to consult during the law-making process would result in courts routinely being asked to interfere in the exercise of legislative discretion regarding whether and at what stage such consultation takes place, which would offend the principle separation of powers.

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