By Yvonne Mazurak
The Crown has a legal obligation to consult with Indigenous peoples when its actions may negatively affect their constitutionally-protected rights. This duty to consult and accommodate was established by Haida Nation v British Columbia and is based on the principle of the honour of the Crown, which requires the Crown to act in the best interests of Indigenous peoples. The Supreme Court of Canada has provided guidance regarding the circumstances that trigger the duty to consult (a recent case is Tsilhqot'in Nation v British Columbia), but not until the Mikisew decision—released on October 11—had it confirmed whether this duty applies to the enactment of legislation.
Some hoped when Haida was released in 2004 that it would “set the stage for meaningful engagement with Indigenous peoples around the development of laws and avoid potential legal challenges to enacted legislation that adversely affects Aboriginal and Treaty rights.” Fifteen years later, Mikisew is a step in the opposite direction.
The Mikisew are descendants of an Indigenous group that adhered to Treaty No. 8. Signed with the Queen in 1899, the treaty has been described as “a comprehensive framework that allows First Nations and the newcomers to collectively uphold all the rights and privileges of Treaty No. 8.” These include hunting and fishing rights.
In 2012, the Minister of Finance under the Harper administration introduced legislation that included sweeping amendments to several environmental laws, including the removal of protections for forests and waterways and changes to fishing laws. The changes were of great concern to many groups, organizations and individuals for their impact on the environment and Indigenous rights and interests, and it was in response to the bill that Idle No More formed.
The Mikisew challenged the government’s failure to consult during the development of the bill by filing a judicial review. At trial, the court granted a declaration that the duty was triggered. The Federal Court of Appeal, however overturned the decision, holding that the lower court erred in conducting a judicial review of the legislation, and that assigning the duty to ‘legislative action’ goes against the principles of the separation of powers and parliamentary privilege.
The Mikisew appealed to the Supreme Court of Canada.
Unanimously, the Court agreed that the Federal Court lacked jurisdiction to conduct judicial review of decisions made by Ministers exercising legislative power. On whether the legislation triggered the duty to consult, four opinions (generally expressing 3 positions) were issued.
Justices Karakatsanis, Wagner and Gascon held that the duty to consult does not “apply well” to legislation. Recognizing the duty in this context would involve the Court ruling on how legislation is formulated, and therefore violate the separation of powers. They also said that interfering with legislation would violate “parliamentary sovereignty,” which allows Parliament to introduce any legislation it sees fit. It was additionally held that recognizing the duty in this context would “be highly disruptive” to the legislative process and could “effectively grind the day-to-day internal operations of government to a halt.” Recognizing that this ruling could “undermine the endeavor of reconciliation,” they suggest that protections other than the duty to consult could arise to “give full effect to the honour of the Crown.”
Justices Brown, Rowe, Moldaver and Côté agreed that the duty is not triggered because it attaches to exercises of Crown power and law-making is a parliamentary process.
Justices Abella and Martin agreed regarding jurisdiction but argued that the honour of the Crown “infuses the entirety of the government’s relationship with Indigenous peoples” and therefore the duty extends to legislation before it has been enacted.
Deciding Against Reconciliation
In the words of the TRC, reconciliation can be generally understood as involving “awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour.” The doctrine of the duty to consult and accommodate is an important development in the path toward reconciliation. By failing to recognize the duty in the legislative context, Mikisew leaves Indigenous peoples vulnerable to the infringement of their rights.
Unfortunately, the alternative protections that currently exist do not compare to consultation since they are only available once the legislation has been passed. Litigation, however, is expensive and time-consuming, making it unsuitable for many. It also achieves less legitimacy than the negotiation that arises from consultation, as the latter allows parties to participate more directly and constructively. Backward-looking approaches also allow for harm, often irreparable, to be done before it can be challenged. For these reasons, the Court noted in Haida that “while Aboriginal claims can be and are pursued through litigation, negotiation is a preferable way of reconciling state and Aboriginal interests.”
Further, despite Canada being a signatory to UNDRIP, the Declaration was not mentioned in the decision. The decision, however, directly contradicts Article 19, which says "States shall consult and cooperate in good faith with the Indigenous peoples concerned…before adopting and implementing legislative or administrative measures that may affect them."
The Court had an opportunity to make another step toward reconciliation, by recognizing and affirming treaty rights and Canada’s stated commitment to implementing UNDRIP. Unfortunately and troublingly it decided against it.