November 2018 Māori Law Review
Mikisew Cree First Nation v Canada
Supreme Court of Canada 2018 SCC 40
11 October 2018
The Supreme Court of Canada dismissed an appeal by Mikisew Cree First Nation (Mikisew Cree) against a finding in the Federal Court of Appeal that the ‘duty to consult’ First Nations does not apply to the development of legislation.
Overview and Result
|Judicial review – Supreme Court of Canada – development of legislation – duty to consult – honour of the Crown|
|Date||11 October 2018|
|Case||Mikisew Cree First Nation v Canada|
|Citation||2018 SCC 40|
|Court||Supreme Court of Canada|
|Judge(s)||Wagner CJ, Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe, Martin JJ|
|Earlier/later decisions||Canada v Mikisew Cree First Nation 2016 FCA 311,  3 FCR 298; Mikisew Cree First Nation v Canada 2014 FC 1244, 470 FTR 243.|
|Legislation cited||Constitution Act 1982, Federal Courts Act 1985, Indian Act 1985, Treaty No 8 (1899), Canadian Environmental Assessment Act 2012 and 1992, Canadian Charter of Rights and Freedoms, Bill of Rights (England), Magna Carta.|
|Cases cited||Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73,  3 SCR 511; R v Sparrow  1 SCR 1075; Manitoba Métis Federation Inc v Canada 2013 SCC 14,  1 SCR 623; Taku River Tlingit First Nation v British Columbia (Project Assessment Director) 2004 SCC 74,  3 SCR 550; Tsilqot’in Nation v British Columbia 2014 SCC 44,  2 SCR 257; Delgamuukw v British Columbia  3 SCR 1010; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council 2010 SCC 43,  2 SCR 650; R v Badger  1 SCR 771.|
|Overview and result||The Supreme Court of Canada found that the Crown’s duty to consult and accommodate the rights and interests of First Nations peoples does not apply to any step of the legislative process.|
The legislative process, from the inception of policy to a Bill’s assent into legislation, is undertaken by the legislative branch of government and the courts are not constitutionally equipped to supervise or comment on that process by virtue of the separation of powers, parliamentary privilege and parliamentary sovereignty doctrines.
The Court dismissed Mikisew Cree’s appeal on these grounds, but found that a challenge to the legislation after its enactment could be legitimately determined by the courts.
The Mikisew Cree First Nation is an Indian band with traditional tribal territories in northern Alberta, northeastern British Columbia and northwestern Saskatchewan, an area rich in oil sands. In 1899 Mikisew Cree and other Indian bands agreed to Treaty 8, which preserved aboriginal rights to hunt, trap and fish in exchange for Crown ownership of a large portion of tribal lands. Those aboriginal rights are protected by s 35 of Canada’s Constitution Act, which provides that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
In 2012, the Federal government introduced two omnibus bills which would repeal the Canadian Environmental Assessment act and replace it with a new Act regulating environmental protection. The new legislation would allow oil companies and other organisations to build structures on or near waterways without government approval, and did not include protection mechanisms for fish and wildlife. Mikisew Cree were not consulted on either of the bills at any stage of their development before they were passed into legislation. Mikisew Cree claimed that the Crown had a legal duty, founded in the doctrine of the ‘honour of the Crown’, to consult on the potential adverse impact on Treaty rights during the legislative development stage. Mikisew Cree sought declarations to that effect.
Decisions in the lower courts
The Federal Court agreed with Mikisew Cree, and made a declaration that the duty to consult was triggered and that Mikisew Cree were entitled to notice of the relevant legislative provisions, as well as an opportunity to make submissions.
On appeal, a majority of the Federal Court of Appeal found that the Federal Courts Act precluded judicial review of the legislative process. That Court found that the development of policy is a legislative function immune from judicial review. Mikisew Cree appealed to the Supreme Court.
Existing framework for protection of aboriginal/Treaty rights in Canada, and challenging infringements
Prior Supreme Court jurisprudence established that the honour of the Crown governs the relationship between the Crown and indigenous peoples in Canada. The honour of the Crown arises from the Royal Proclamation of 1763, when the Crown asserted sovereignty over land and resources previously governed by tribes.
In other words, servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign. The honour of the Crown compels the Crown to consult with and accommodate the interests of indigenous peoples where any actual or contemplated government conduct – whether through legislative power or executive authority – that could adversely impact aboriginal or Treaty rights.
The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing indigenous societies with the Crown’s assertion of sovereignty, and was given constitutional status with the enactment of s 35 of the Constitution Act.
In R v Sparrow the Supreme Court considered whether aspects of the Fisheries Act regulating Indian fishing methods were inconsistent with s 35. The Court established the ‘justification approach, which asks whether an existing aboriginal right has been infringed and if so, whether the interference is justified. In assessing justification, the Court elevated the importance of the honour of the Crown, finding that it must be the “first consideration in determining whether the legislation or action in question can be justified”. The Court found that consultation between Crown and the aboriginal group is relevant to an assessment of whether the Crown has acted consistently with the honour of the Crown, depending on the circumstances.
Then in Delgamuukw v British Columbia the Supreme Court assessed claims for aboriginal title against s 35. The Supreme Court here too applied the justification approach in assessing whether any the objective of infringement on common law aboriginal title were consistent with the special fiduciary relationship between the Crown and aboriginal groups. It found that “there is always a duty of consultation” and in most cases that duty will be “significantly deeper than mere consultation”, and could require full consent.
Finally in Haida Nation v British Columbia, Haida challenged forestry licences granted by the government which were inconsistent with Haida’s claimed aboriginal right to harvest, without consulting the tribe. At the time of the claim, Haida’s aboriginal title claims were still in the treaty negotiation process and as such were not legally acknowledged. Nonetheless, the Supreme Court found that the honour of the Crown applied even where rights or title was not yet proved. If the Crown had knowledge, real or constructive, of the potential existence of Aboriginal rights or title, and was contemplating conduct that might adversely affect those rights, then the Crown had a legal duty to consult and accommodate.
Supreme Court decision
Against this background, the primary issue in the Mikisew Cree decision was whether the honour of the Crown, and the concomitant duties to consult and accommodate indigenous peoples, is triggered by the development of legislation that could potentially affect existing indigenous rights and interests. This required the Court to assess the constitutional nature of Ministers’ actions in developing legislation, and the extent to which the honour of the Crown mandates a particular course of action.
The Court unanimously dismissed the appeal for want of jurisdiction. The Federal Courts Act provides federal courts with jurisdiction only against the Crown as “Her Majesty in Right of Canada”, and in this case the Court found that powers were derived from Part IV of the Constitution Act 1867 rather than from any statutory authority (at ). The powers were thus “uniformly legislative in character” (at ) and could not be the subject of judicial review.
The Court disagreed, however, as to what the honour of the Crown requires of Ministers acting in their legislative capacity.
Karakatsanis J, writing for Wagner CJ and Gascon J found that the law-making process – comprising the development, passage and enactment of legislation – does not trigger the duty to consult (at ). While their Honours acknowledged the overlap between the executive and legislative functions in Canada, the legislative function is grounded in the Constitution Act 1867 and is immune from supervision by the courts (at , ). Karakatsanis J relied on a combination of the doctrines of parliamentary sovereignty (that only Parliament can make or unmake any law it wishes, at ), the separation of powers (non-interference between the distinct branches of government, at ) and parliamentary privilege (only Parliament can regulate its own procedures, at ) to conclude that “applying the duty to consult doctrine during the law-making process would lead to a significant judicial incursion into the workings of the legislature, even if such a duty were only enforced post-enactment” (at ). This was so even though Mikisew Cree was seeking declaratory relief (at ).
In response to Mikisew Cree’s argument that a lack of consultation in the legislative development stage would leave them without a remedy, Karakatsanis J found that the existing infringement approach in Sparrow whereby the Court may invalidate legislation inconsistent with s 35 was always available (at ). Karakatsanis J did acknowledge the difficulty where a tribe’s allegations do necessarily not rise to the level of infringement that justifies invalidation. In that case, even if the duty to consult does not apply, the Judge left the door open for the development of “other doctrines” informed by the honour of the Crown to ensure protection of s 35 rights (at ), or the tribe could seek alternative relief such as declarations (at ).
Although concurring in the result, Brown J did not consider that Karakatsanis J’s judgment gave a “clear and constitutionally correct answer” (at ). Brown J emphatically rejected the suggestion that the honour of the Crown binds Parliament (at ), in doing so also rejecting Karakatsanis J’s suggestion that the honour of the Crown could inform remedies that do not meet the established Sparrow infringement test (at ).
In Brown J’s view, those alternatives would undermine the constitutional principles separating the legislature from the courts in the same way imposing a duty to consult during the legislative phase (at -). Rather, reviewing legislative action for consultation can only be considered as part of a Sparrow analysis, only after the allegedly impugned legislation is enacted. His Honour endorsed previous authority that “the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent” (at , citing Authorson v Canada (Attorney-General) 2003 SCC 39,  2 SCR 40 at ). His Honour also confined Haida Nation to “Crown conduct”, which does not encompass any legislative function (at ,  and ).
Brown J concluded (at ):
That this is so should not, however, be seen to diminish the value and wisdom of consulting Indigenous peoples prior to enacting legislation that has the potential to adversely impact the exercise of Aboriginal or treaty rights. (emphasis added)
Rowe J, writing for Moldaver and Côté JJ, largely adopted Brown J’s reasoning. His Honour provided further detail about the thirty steps involved in the legislative process (at ) and explained the practical difficulties should the Court impose a pre-legislation duty to consult (at ). His Honour found that the consultation aspect of the Sparrow infringement test provided a strong incentive on the legislature to seek input from indigenous communities in the legislative process (at ), and distinguished Haida on the basis that the injury claimed by Mikisew Cree (that modifying the regulatory framework itself affects treaty rights) was not the kind which could trigger the duty to consult (adverse effects on treaty rights via government decisions made pursuant to legislation).
Abella J, writing on behalf of Martin J, disagreed with the majority. Her Honour considered that the enactment of legislation with the potential to adversely affect rights protected by s 35 gives rise to a duty to consult, and legislation enacted in breach of that duty may be challenged directly for relief (at ). This is because the honour of the Crown infuses the entirety of the government’s relationship with indigenous peoples, and so the duty to consult must apply to all exercises of authority which are subject to s 35 scrutiny (including the enactment of legislation) (at ). Abella J found that the duty to consult arises based on the effect of the government action rather than its source (at ), and in doing so considered that parliamentary sovereignty and the separation of powers should be interpreted in a way that reconciles protecting the legislative process from judicial interference with protecting Aboriginal rights from the legislative process (at ). This approach, in her Honour’s view, is consistent with the overarching purpose of the honour of the Crown: reconciling Aboriginal and Crown sovereignty (at ).
Abella J found that the effect of Sparrow and Haida combine to ensure that the honour of the Crown is upheld “throughout all actions which engage the special relationship with Aboriginal peoples” (at ). Ongoing consultation is preferable to requiring ex post facto challenges (at ), and would require the Crown (in both its legislative and executive capacities) to act consistently with the honour of the Crown at all times (potentially reducing s 35 claims). This approach also encourages the Crown to take the rights guaranteed in s 35 seriously (at ).
Despite the convergence in views on the scope and effect of the duty to consult, the Supreme Court unanimously dismissed the appeal on the grounds that the Federal Court never had jurisdiction to consider Mikisew Cree’s claim.
The Supreme Court’s decision essentially confines challenges by aboriginal groups to government measures that could affect aboriginal rights to post-enactment infringement claims. The Court has immunised what it expansively defines as “the legislative process” (from initial “policy choices” to royal assent), while not adequately addressing the extent of overlap between legislative and executive action, which would be open to challenge on a Haida basis.
While challenge under the orthodox Sparrow test remains open to indigenous groups, these challenges are onerous on the challenger and the threshold for infringement is high, requiring the Court to embark upon a balancing of the object of the legislation with existing rights of indigenous groups.
Leaving consultation of indigenous groups to the “wisdom” of the government of the day undermines the long-established special relationship between the Crown and indigenous peoples in Canada, and increases the likelihood that potentially infringing legislation is enacted in the first place. The courts’ may only supervise and uphold the principles defining this relationship after legislation is enacted.
This decision represents a divergence in approach between New Zealand and Canada, as signified by New Zealand Supreme Court’s recent decision in Ngāti Whātua Ōrākei Trust v Attorney-General in which the Supreme Court found that any challenges involving identifiable Māori rights are justiciable before courts even in the context of legislative development. In the New Zealand context, this decision reinforces access to justice for indigenous groups, as well as the utility to Parliament of the courts’ assessment of legal rights.
While Mikisew Cree may embark on a s 35 infringement claim, this decision may also prompt a renewal in political pressure on the Canadian government to recognise and accommodate indigenous interests at all stages of the policy or legislative processes. Mikisew Cree may also consider its international redress options, such as creating international pressure based on Canada’s obligations as a signatory to the United Nations Declaration on the Rights of Indigenous Peoples.
 See for example Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73,  3 SCR 511.
 Manitoba Métis Federation Inc v Canada 2013 SCC 14,  1 SCR 623 at .
 R v Sparrow  1 SCR 1075 at 1114.
 R v Badger  1 SCR 771 at .
 Taku River Tlingit First Nation v British Columbia (Project Assessment Director) 2004 SCC 74,  3 SCR 550 at .
 R v Sparrow  1 SCR 1075 at 1114.
 Delgamuukw v British Columbia  3 SCR 1010 at .
 Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73,  3 SCR 511 at . See also Taku River Tlingit First Nation v British Columbia (Project Assessment Director) 2004 SCC 74,  3 SCR 550 at -.