No need for In­dige­nous con­sul­ta­tion

Supreme Court says laws can be drafted with­out their in­put

The Peterborough Examiner - - Canada & World - JIM BRONSKILL

OT­TAWA — Fed­eral min­is­ters do not have a duty to con­sult In­dige­nous groups when draft­ing leg­is­la­tion, the Supreme Court of Canada has ruled.

In a de­ci­sion Thurs­day in­volv­ing an Al­berta First Na­tion, a ma­jor­ity of the high court said the law-mak­ing process does not amount to Crown con­duct that trig­gers the deeply en­trenched duty to con­fer with In­dige­nous peo­ple.

The rul­ing helps clar­ify the steps the fed­eral gov­ern­ment must take — and when — in up­hold­ing the Crown’s obli­ga­tion to act hon­ourably in its deal­ings with In­dige­nous groups.

The Mikisew Cree ar­gued that the former Con­ser­va­tive gov­ern­ment should have con­sulted them on leg­isla­tive pro­pos­als that would af­fect their treaty rights.

In 2012, the gov­ern­ment in­tro­duced two om­nibus bills propos­ing changes to Canada’s en­vi­ron­men­tal pro­tec­tion and reg­u­la­tory pro­cesses. Bills C-38 and C-45 amended the Fish­eries Act, the Species At Risk Act, the Nav­i­ga­ble Wa­ters Pro­tec­tion Act and up­dated the Cana­dian En­vi­ron­men­tal As­sess­ment Act.

A Fed­eral Court judge said there was a duty to con­sult the Mikisew be­cause the pro­pos­als would ar­guably af­fect fish­ing, trap­ping and nav­i­ga­tion.

The Fed­eral Court of Ap­peal over­turned the rul­ing, say­ing that in­clud­ing the duty to con­sult in the leg­isla­tive process of­fends the doc­trine of the sep­a­ra­tion of pow­ers and the prin­ci­ple of par­lia­men­tary priv­i­lege.

The de­ci­sion prompted the Misikew to take their case to the Supreme Court.

All nine high court jus­tices agreed that the Fed­eral Court did not even have ju­ris­dic­tion to re­view the ac­tions of the min­is­ters who drafted the bills, since the court is lim­ited to scru­ti­niz­ing mea­sures taken by a fed­eral board, com­mis­sion or other tri­bunal.

With re­spect to the duty to con­sult, seven Supreme Court judges con­cluded there was no such obli­ga­tion dur­ing the law­mak­ing process, but they split into three groups in spell­ing out their rea­sons.

Writ­ing on be­half of her­self and two oth­ers, Jus­tice An­dro­mache Karakat­sa­nis said the de­vel­op­ment of leg­is­la­tion by min­is­ters is gen­er­ally pro­tected from over­sight by the courts.

“Long-stand­ing con­sti­tu­tional prin­ci­ples un­der­lie this re­luc­tance to su­per­vise the law-mak­ing process,” she said in her rea­sons.

“Rec­og­niz­ing that a duty to con­sult ap­plies dur­ing the law­mak­ing process may re­quire courts to im­prop­erly tres­pass onto the leg­is­la­ture’s do­main.”

How­ever, Karakat­sa­nis em­pha­sized that this find­ing does not ab­solve the Crown of its duty to act hon­ourably to­ward In­dige­nous peo­ple or limit the rel­e­vance of con­sti­tu­tional pro­tec­tions.

In ad­di­tion, she sug­gested other reme­dies might be avail­able to In­dige­nous groups, such as court ac­tion once a law is passed.

Two judges — Ros­alie Abella and Sheilah Martin — dis­agreed with the oth­ers, say­ing fed­eral leg­is­la­tion with the po­ten­tial to ad­versely af­fect con­sti­tu­tion­ally pro­tected In­dige­nous rights does en­tail a duty to con­sult.

The obli­ga­tion to con­fer with In­dige­nous peo­ple on in­fra­struc­ture projects, as op­posed to the de­vel­op­ment of leg­is­la­tion, re­cently be­came clear in an­other high-pro­file case.

The Fed­eral Court of Ap­peal quashed ap­proval of the Trans Moun­tain pipe­line project due to in­ad­e­quate con­sul­ta­tion with In­dige­nous groups and fail­ure to prop­erly as­sess the ef­fect of in­creased tanker traf­fic in the wa­ters off Bri­tish Columbia.


The Supreme Court ruled that fed­eral min­is­ters have no duty to con­sult In­dige­nous peo­ple when draft­ing laws.

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