Duty to consult First Nations in legislative process now rests with SCC

Duty to consult First Nations in legislative process now rests with SCC
Lawyer Robert Janes says, ‘This is the first time this issue has been squarely before the courts and the first time before the Supreme Court of Canada.’

The Supreme Court of Canada has now heard an appeal from an Alberta First Nation that, if successful, could have a significant impact on First Nations’ role in the creation of legislation where it involves their treaty rights.

In December 2016, the Federal Court of Appeal allowed the appeal of the Governor General in Council and six federal government ministers, after the Federal Court found they had breached their duty to consult the Mikisew Cree on the development and introduction in Parliament of two omnibus bills that reduced federal regulatory oversight of works and projects that might affect the Mikisew Cree’s treaty rights.

The resulting amendments to federal legislation in 2012, under Stephen Harper’s government, had affected the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act and the Canadian Environmental Protection Act. The Canadian Environmental Assessment Act was replaced by a new version of the act.

The government has a duty to consult on major legislative changes as well as on smaller decisions that affected First Nation treaty rights, says Robert Janes of JFK Law Corporation in Vancouver, who argued the appeal before the Supreme Court last week on behalf of Mikisew Cree First Nation, of northeastern Alberta, and its chief, Steve Courtoreille.

“This is the first time this issue has been squarely before the courts and the first time before the Supreme Court of Canada,” Janes told Legal Feeds.

In Tsuu T’ina Nation v. Alberta (Environment), 2008 ABQB 547, the issue was “looked at . . . abstractly,” says Janes, in a case concerning a water management plan for the South Saskatchewan River Basin that was opposed by the Samson Cree Nation and the Tsuu T’ina Nation. The First Nations had sought a declaration that the Crown had a legally enforceable constitutional duty to consult with and accommodate the First Nations where their existing and claimed treaty rights were or might be affected by the SSRB Plan. The Court of Queen’s Bench found in favour of Alberta, noting that “the approval of the SSRB Plan itself did not have an adverse impact on the Applicants’ Aboriginal or treaty rights, asserted or claimed” and that “the duty to consult is part of the evolution of our constitutional common law” (emphasis added) rather than “in the Constitution.”

And in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, the Supreme Court of Canada found that “the duty to consult extends to ‘strategic, higher level decisions’ that may have an impact on Aboriginal claims and rights”; however, the court concluded then, “We leave for another day the question of whether government conduct includes legislative action . . . “

In allowing the appeal in Canada (Governor General in Council) v. Mikisew Cree First Nation, [2017] 3 FCR 298, 2016 FCA 311, the Federal Court of Appeal held that while federal ministers have executive powers in their responsibilities for their departments pursuant to statues, those statutes do not refer to the ministers’ roles as policy-makers or to the development of legislation for introduction in Parliament. Rather, those roles flow from the Constitution and from Canada’s system of parliamentary democracy.

The host of interveners in Chief Steve Courtoreille on behalf of himself and the members of the Mikisew Cree First Nation v. Governor General in Council, et al., now before the Supreme Court of Canada, includes the attorneys general of Quebec, New Brunswick, British Columbia, Saskatchewan and Alberta, several Yukon First Nations, the Assembly of First Nations, the Grand Council of the Crees and Cree Nation Government, the Manitoba Métis Federation and Advocates for the Rule of Law.

“ARL will be arguing that the Court should not recognize a justiciable duty to consult at any stage of the law-making stage as it would be contrary to the constitutional principles of parliamentary sovereignty and the separation of powers and would severely impede the law-making process which is integral to the rule of law in Canada,” according to an article on ARL’s website.

If the Mikisew First Nation is successful in its appeal, “lawmakers would have to figure out an approach to consulting First Nations,” says Janes. From the standpoint of reconciliation between First Nations and the governments of Canada, this would be “entirely positive,” he says. “One gripe First Nations have is that administrators apply rules,” and when First Nations take issue with them the administrators say, “’you should be talking to the legislator about the problem.”

The case now before the Supreme Court of Canada, at the least, “makes sure people are talking” about the issue and “taking First Nations into account.”

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