The Supreme Court of Canada issued a landmark ruling Thursday that Canada does not have a duty to consult Indigenous peoples when making laws that could impact treaty rights.
In a 7-2 ruling, the court maintains that while the duty to consult applies to the federal government’s executive branch, the legislative branch of government is not constitutionally bound to consult Indigenous peoples during the law-making process.
It is only after laws are made that the government has a duty to consult Indigenous peoples on matters that could negatively impact their treaty rights.
The case was brought to the Supreme Court by Mikisew Cree First Nation in Alberta, which in 2013 challenged the Harper Government’s 2012 omnibus legislation that, Mikisew Chief Steve Courtoreille argued, could impact their treaty rights to hunt, trap and fish in Treaty 8 territory.
The Harper government’s significant amendments to the Fisheries Act, Species at Risk Act and the Navigable Waters Act triggered the Indigenous-led Idle No More movement.
Mikisew First Nation asked the Federal Court of Canada to review the bills, declare the government should have consulted with them first, and block the new laws.
The federal court sided with Mikisew, but the Federal Court of Appeal later said the federal court did not have the jurisdiction to hear the case.
In its ruling the court of appeal said the federal court could only hear challenges to existing legislation, not laws that are in the process of being developed.
All nine supreme court judges agreed that the federal court should not have the power to rule on matters pertaining to the legislative branch of government.
Seven judges agreed that the Crown does not have a duty to consult during the legislative process, but five argued both the executive branch of government and Parliament have a constitutional duty to uphold the honour of the Crown.
Dissenting Justice Rosalie Silberman Abella writes in the decision that the Crown ought to have a duty to consult Indigenous peoples when making laws that might adversely affect them since the honour of the Crown “governs the relationship between the government of Canada and Indigenous people.
“This obligation of honour gives rise to a duty to consult and accommodate that applies to all contemplated government conduct with the potential to adversely impact asserted or established Aboriginal and treaty rights, including, in my view, legislative action.”
Justice Abella says what matters is the impact of government action on Indigenous peoples, not which branch of government caused the potential for harm.
But while most judges agreed that the honour of the Crown applies to both the legislative and executive branches of government, seven of nine argued that the duty to consult does not apply to Parliament, the legislative branch.
Justice Andromache Karakatsanis, in the decision, wrote that the “duty to consult doctrine is ill-suited for legislative action,” citing the separation of powers between Parliament and the executive branch as an overriding constitutional principle, as well as parliamentary privilege, which “demonstrates that the law-making process is largely beyond the reach of judicial interference.”
Karakatsanis did say, however, that the duty to consult wasn’t the only possible way for the Mikisew to protect their constitutional rights and that the Crown, constitutionally bound to act honourably, could open other avenues for Indigenous peoples to challenge legislation that may adversely impact Aboriginal or treaty rights.
“The duty to consult doctrine does not apply to the legislature,” she wrote.
“However, if others forms of recourse are available, the extent of any consultation may well be a relevant consideration…when assessing whether the enactment is consistent with constitutional principles.”