No need for Indigenous consultation
Supreme Court says laws can be drafted without their input
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.