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Federal Court finds legislation may attract a duty to consult but Parliament still supreme

Reading Time 4 minute read

Aboriginal Law Bulletin

On December 19, 2014, the Federal Court released a decision finding the Federal Government owed a duty to consult when it implemented changes to environmental legislation through two omnibus bills in 2012, but that the Court would not interfere in the legislative process due to Parliamentary supremacy. 

The applicant was Chief Steve Courtoreille, on behalf of the Mikisew Cree First Nation – a signatory to Treaty No. 8. The Mikisew’s traditional territory is in Northeastern Alberta, within the Peace-Athabasca Delta and Lower Athabasca River regions.

In 2012, Canada introduced and passed two omnibus bills (Bills C-38 and C-45, collectively, the “Omnibus Bills”), which changed a number of environmental laws. As the Court noted, the “effect of the amendments to those Acts is arguably to reduce the number of bodies of water within Canada which are required to be monitored by federal officials thereby affecting fishing, trapping and navigation.” Some of these waters are located within the Mikisew’s Treaty No. 8 territory. The Mikisew were neither consulted prior to the introduction of the Omnibus Bills in Parliament, nor during the Parliamentary process resulting in the Bills receiving Royal Assent.

The Mikisew applied to the Court seeking a declaration that the Ministers owed them a duty to consult before the Omnibus Bills were presented to Parliament. The Mikisew were careful to frame the relief sought as being distinct from affecting the legislative process of Parliament itself. The Mikisew argued that before the Ministers could introduce legislation to Parliament that could adversely impact their treaty rights, the Ministers had a duty to consult. In addition to the declaration, the Mikisew sought an injunction against the various Ministers and Governor General in Council respecting the legislation already enacted, as well as proposed legislation.

The government argued in response that, in the law-making process, the Ministers were acting in their legislative capacity and, as such, their actions and decisions are excluded from judicial review. In the alternative, the government argued the Mikisew failed to meet the test set out by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 to establish the existence of a duty to consult in this case.

The Court rejected the first of the government’s arguments, finding it had jurisdiction to decide the matter. The Court then asked whether a duty to consult arises at any point during the law-making process. The Court reviewed the case law regarding the separation of powers and upheld the long line of authority preventing the Courts from imposing obligations or procedures on Parliament’s decision-making process. To find otherwise would compromise the sovereignty of Parliament, the Court acknowledged. The Court concluded that the duty to consult cannot trigger judicial intervention before a Bill is introduced into Parliament.

With this conclusion, the Court effectively rejected the Mikisew’s arguments. However, the Court did not end its analysis there. The Court reviewed the evidence and found, while there was “no actual harm” at this point in time, the changes in the Omnibus Bills demonstrated a “sufficient potential risk” to the Mikisew’s fishing and trapping rights to trigger the duty to consult. This conclusion was based on the fact that the Omnibus Bills essentially shrunk the ambit of federal regulation and oversight. Fewer projects can now trigger a federal environmental assessment requirement, which was found to be protective of the Mikisew’s fishing, hunting and trapping rights.

After finding a duty was owed, the Court defined the scope of that duty. In this case, the Mikisew were entitled to notice and a reasonable opportunity to make submissions when the Omnibus Bills were submitted to Parliament.

The Court refused to grant an injunction or require that the parties must now consult:

However, a declaration to the effect that the Crown ought to have given the Mikisew notice when each of the Bills were introduced into Parliament together with a reasonable opportunity to make submissions may have an effect on the future respecting continuing obligations to the Mikisew under Treaty No. 8.

It will be interesting to see if this case is appealed. The Federal Court did not explain how its finding that there was a duty to consult when the Omnibus Bills were presented to Parliament is consistent with its analysis regarding the sovereignty of Parliament and the courts’ inability to intervene in the Parliamentary process. This is an issue the government will likely want clarified. Additionally, as the case stands, the Court has acknowledged a duty to consult but essentially provided no remedy for a breach of that duty, other than a declaration. This is an issue the Mikisew will likely want clarified.

Special thanks to articling student Rebecca Coad for her assistance in drafting this bulletin.

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