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The Seven Year Itch: The SCC Returns to Address an Unresolved Question regarding the Crown’s Duty to Consult Aboriginal People and the Legislative Process

Posted in Aboriginal, Administrative Law, Constitutional Law, Consultation, Environmental, Project Permitting, Public Law, Regulatory
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On May 18, 2017, the Supreme Court of Canada agreed to hear an appeal in an important case that could further define the nature and extent of the Crown’s duty to consult Aboriginal people, including the previously unresolved question as to whether the Crown’s duty to consult Aboriginal people can be triggered by legislative action.

Background – When Does the Crown Duty to Consult Arise?

In 2010, the Supreme Court of Canada, in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, addressed the question “When Does the Duty to Consult Arise?”  The Court found that the test for triggering the Crown’s duty to consul can be broken down into three elements:

(1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right;

(2) contemplated Crown conduct; and

(3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. (para. 31)

In discussing the second element (contemplated Crown conduct), the Court went out of its way to clarify that it was not addressing the question of whether consultation obligations could arise from the government’s action in preparing or passing legislation.

“We leave for another day the question of whether government conduct includes legislative action.”  (para. 44)

That day may arrive soon.

Omnibus Legislation – Does the Crown Duty to Consult Arise from Legislative Action?

In 2012, the then-Minister of Finance introduced Bill C-38, enacted as the Jobs, Growth and Long-Term Prosperity Act, and Bill C-45, enacted as the Jobs and Growth Act 2012. These two omnibus bills resulted in the repeal of the Canadian Environmental Assessment Act; the enactment of the Canadian Environmental Assessment Act, 2012; as well as in amendments to the Fisheries Act, the Species at Risk Act, the Canadian Environmental Protection Act, 1999,  and the Navigable Waters Protection Act, renamed the Navigation Protection Act.[1]

The Mikisew Cree First Nation commenced court proceedings alleging that the two omnibus bills reduced the types of projects that were subject to federal environmental assessment, reduced the navigable waters that required federal approval to build obstructing works on them, diminished the protection of fish habitat, and reduced the requirements to approve effects on species at risk. Since environmental assessments and other federal approval mechanisms typically allow First Nations to voice their concerns about effects on its treaty rights to hunt, fish and trap, and have those rights accommodated, the Mikisew Cree argued that this reduction in oversight may affect their treaty rights and accordingly, the Crown should have consulted with it during the development of that legislation and upon its introduction in Parliament.

In the lower Courts, the results were mixed:

  1. the Federal Court (December 19, 2014) found that the relevant federal Ministers had breached their duty to consult the Mikisew Cree on the development and introduction in Parliament of the two omnibus bills.
  2. the Federal Court of Appeal (December 7, 2016) granted the appeal —finding that legislative action is not a proper subject for an application for judicial review in the Federal Court and that importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege.

The Mikisew Cree sought leave to appeal to the Supreme Court of Canada.

 The Question Returns to the Supreme Court

On May 18, 2017, the Supreme Court of Canada granted leave to appeal. Thus, approximately seven years after leaving the question open, the Court (which has a number of new justices on the bench) will return to the question of whether legislative action is or can be considered “Crown conduct” for the purpose of triggering the duty to consult Aboriginal peoples. Depending on the answer [2], the Court’s decision could have a profound impact on both the federal and provincial legislative process in Canada.

 


[1] In June 2016, the Trudeau government announced a review of environmental and regulatory processes. Two Expert Panels have now released their reports on (i) reviewing the federal environmental assessment processes; (ii) modernizing the National Energy Board.  In addition, two Standing Committees have now reported on restoring lost protections and introducing modern safeguards to the Fisheries Act and the Navigation Protection Act.  See our prior blog posts on these developments:

Federal Environmental Assessment – What’s Next? – Expert Panel Releases Report

Indigenous Considerations in the Expert Panel Report on Federal Environmental Assessment Processes

Federal Environmental Assessment – What’s Next? – Proposed New Triggers

Federal Environmental Assessment – What’s Next – A Single Impact Assessment Authority

Federal Environmental Assessment – What’s Next – Stages of Project Impact Assessment

Federal Environmental Assessment – What’s Next – A Tiered Approach

[2] Typically, it takes approximately six to eight months between the date leave to appeal is granted and a hearing of the appeal.  Further, it typically takes six months (or longer) between hearing of an appeal and judgment.