In October of 2018, the Supreme Court of Canada ruled on a contentious case involving the Mikisew Cree. This dispute stemmed from the Harper government's introduction of two omnibus bills dating back to 2012. These bills proposed changes to Canada's environmental protection and regulatory processes, which the Mikisew challenged for violation of a treaty they signed with the Crown back in the late 1800s. The Canadian Constitution legally recognizes and affirms these treaties reached between the Crown and Indigenous groups.
The Indigenous group asserted that if these bills passed, the environment rollback provisions contained within them would harm the environment (such as by permitting mining companies to build structures without government approval). The Mikisew's position was that this violated their constitutionally protected treaty rights to hunt, fish and trap on their territory. They argued that the Crown had a duty to consult them on the development of such legislation as it impacted their treaty rights.
The group successfully pleaded its case in the federal court, but eventually lost on appeal at the Supreme Court of Canada, where the justices decided 7-2 against them. The majority of the court concluded that the duty to consult in fact did not extend to the law-making process. In reaching this conclusion, however, the court was surprisingly divided.
Most notably, Justice Andromache Karakatsanis, writing on behalf of herself and two other justices, stated that the judiciary normally does not oversee the development of legislation. Allowing consultation at the law-making process would require courts to "improperly trespass onto the legislature's domain."
Nevertheless, she reiterated that this decision does not clear the Crown from acting in a manner that is inconsistent with the obligations it owes to Indigenous peoples: it simply means that the Mikisew should challenge the law once it is enacted — as has always been the case.
The underlying purpose of the duty to consult is to facilitate reconciliation between the Crown and Indigenous interests.
Even though the Supreme Court refused to broaden the scope of the duty to consult in the present case, questions surrounding this issue seem far from settled. Previously, the court has (rightly) stated that "true reconciliation is rarely, if ever, achieved in courtrooms." However, its lack of clarification and internal split here likely means that in the coming years we can actually expect more litigation, not less, concerning how the duty to consult meshes with the law-making process.
For now, it appears that Indigenous people may have to continue their reliance on the courts when their rights are at stake.
What exactly is the 'duty to consult'?
The "duty to consult" is one of the several duties which arises a broader legal principle, termed the "Honour of the Crown." The Honour of the Crown is a broad concept which imposes a variety of duties upon Canadian governments, both federal and provincial, in its dealings with Indigenous communities. As noted earlier, under section 35 of the Constitution, the Crown must recognize and affirm existing rights and treaties. The Honour of the Crown is always at stake when dealing with Indigenous communities.
The duty to consult, flowing from the Honour of the Crown, imposes a responsibility on the government to discuss an administrative decision it reasonably expects may negatively impact treaty rights. When the duty to consult is triggered, both the Crown and Indigenous communities are expected to consult in good faith.
Implications of the Supreme Court decision
Seven of the nine judges agreed that the duty to consult doctrine should not apply in the Mikisew case. This Supreme Court ruling demonstrates that, at least presently, the court is unwilling to extend this duty to the development of legislation itself.
As Justice Karakatsanis explained, there are longstanding constitutional principles underlying the judiciary's reluctance to "supervise" the law-making process.
Some in the majority even stated that "the duty to consult doctrine is ill-suited to be applied directly to the law-making process." So, while they do not think it is appropriate to extend the duty to consult the legislative process, they also do not think the Crown should be allowed to impact Indigenous rights through legislation when consultation is otherwise necessary. There may be a need for new principles, other than the duty to consult, in the future to resolve this problem adequately.
Supporters of the majority also argue that had the court ruled differently, the obligations imposed would be unduly burdensome on Parliament and slow the legislative process down even further.
On the other hand, the minority, which was comprised of Justices Rosalie Abella and Sheilah Martin, explained that the majority's reasoning creates a "void in the honour of the Crown (...) leaving Aboriginal rights-holders vulnerable to the same government objectives carried out through legislative, rather than executive, action." In other words, the minority wanted to ensure that Indigenous peoples are consulted upon drafting of legislation that may impact their treaty rights.
Critics of the ruling, siding with Justices Abella and Martin, including the Mikisew Chief, were disappointed in the outcome of the case. Given the time consuming and expensive nature of litigation, these critics argue that Indigenous people should have other options available to them than just the courts: a more streamlined approach where they can address their concerns with legislators directly must be adopted in the future. This way, they believe that they will be better positioned to prevent the potential harm before it occurs through consultation, while saving valuable time and money litigating.
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At the end of the day, this decision by the court does not entirely settle the law on how the duty to consult interacts with the law-making process. While seven of the nine judges reached the same conclusion, distinct reasons were offered within the majority. The preferred line of reasoning from the majority will be determined in later cases, likely years from now.
Justices Abella and Martin, which were in the minority, fundamentally disagreed with the majority's reasoning.
Interestingly, in light of everything above, the Supreme Court did ultimately agree on one thing: that it would still be wise for the Crown to consult Indigenous groups when drafting of legislation that impacts their treaty rights — even though it is not bound to do so.
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