On October 11, 2018 the Supreme Court of Canada in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 determined that the duty to consult indigenous peoples flowing from section 35 of the Constitution Act, 1982 did not apply to the work of Ministers in the preparation and introduction of legislation. The court also held that the duty to consult did not apply to legislatures and the legislative process. For the courts to allow for review for and of consultation during the preparation and enactment of legislation would infringe on the separation of powers and parliamentary sovereignty.
In coming to its conclusion, the court made it clear that the preparation and introduction of legislation by the government (Ministers) was not part of their executive functions, which are subject to the duty to consult, but rather part of their legislative functions. Since the courts cannot interfere with legislative functions and processes, the manner in which the government prepares legislation, including the manner and degree to which they consult, is immune from judicial review.
Justice Karakatsanis, writing for herself, the Chief Justice and Justice Gascon wrote:
I conclude that the law-making process — that is, the development, passage, and enactment of legislation — does not trigger the duty to consult. The separation of powers and parliamentary sovereignty dictate that courts should forebear from intervening in the law-making process. Therefore, the duty to consult doctrine is ill-suited for legislative action.
The development of legislation by ministers is part of the law-making process, and this process is generally protected from judicial oversight. Further, this Court’s jurisprudence makes clear that, if Cabinet is restrained from introducing legislation, then this effectively restrains Parliament [cite omitted] This Court has emphasized the importance of safeguarding the law-making process from judicial supervision on numerous occasions.
Applying the duty to consult doctrine during the law making process would lead to significant judicial incursion into the workings of the legislature, even if such a duty were only enforced post-enactment. The duty to consult jurisprudence has developed a spectrum of consultation requirements that fit in the context of administrative decision making processes. Directly imposing such executive requirements into the legislative context would be an inappropriate constraint on legislatures’ ability to control their own processes.
I conclude that no aspect of the law-making process — from the development of legislation to its enactment — triggers a duty to consult. In the duty to consult context, “Crown conduct” has only been found to include executive action or action taken on behalf of the executive. I would not expand the application of the duty to consult doctrine to the legislative process.
Justice Rowe, concurring, on behalf of himself and Justices Moldaver and Cote, and furthering the reasoning of Justice Brown, were even firmer in their reliance on the conclusions and their reliance on the separation of powers and parliamentary sovereignty. Whereas the majority may have left some wiggle room, these Justices were concerned that the speak definitively on this issue to avoid any future uncertainty. He forcefully concludes:
Vindicating s. 35 rights does not require imposition of a duty to consult in the preparation of legislation. Indeed, the imposition of such a duty would be contrary to the distinction between the Crown and the legislature. It would offend the separation of powers. It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing. In short, imposing such a duty would not provide needed protection for s. 35 rights. Rather, it would offend foundational constitutional principles and create rather than resolve problems.
Justices Abella and Martin, although concurring on narrower grounds, would apply judicial review to the legislative branch on the question of Crown consultation. For them, “the honour of the Crown infuses the entirety of the government’s relationship with Indigenous peoples, the duty to consult must apply to all exercises of authority which are subject to scrutiny under s. 35. This includes, in my view, the enactment of legislation.” They fail to acknowledge and accept the damage to the constitutional architecture that judicial incursion into the legislative process would bring. The waffling on the protections of Article 9 of the Bill of Rights, 1689 that precludes courts questioning or impeaching parliamentary proceedings, if it had been adopted by the majority, would have unduly constrained the legislative processes and the independence of the legislature.
The concerns of these judges is, I suggest, rooted not so much in a failure to understand the separation between the Crown in Parliament and the Crown as the executive (although for convenience they side step this apparent collapsing of roles) but rather in the adequacy of possible avenues for indigenous peoples to protect the constitutional imperative of consultation throughout the operations of the entire of constitutional machinery. Although the remaining justices are clear in stating that the separation of powers and the underlying constitutional system of parliamentary sovereignty preclude the courts imposing and supervising any of the legislative process, they are all concerned enough about the possible effects of their decision (no direct judicial review) to identify numerous ways that indigenous litigants can bring the issue to court when challenging legislation once enacted, and any government or Crown actions, including regulation making, taken under any enacted legislation.
The reason the court struggles with the fallout of their judgement is they focus primarily on the role that the courts play in holding the government (Crown) to account for the failure to consult. They identify the means that the courts can use to address consultation concerns after enactment of legislation. They make this assessment based on the correct constitutional analysis that they cannot concern themselves with the legislative process. This ex post facto result may suggest to some, including Justice Abella, that there is a constitutional gap and that the courts needed to plug it, and they failed to do so.
But there is no constitutional gap, what there is is a recognition that different constitutional actors are responsible at different points for the carrying out of constitutional analysis and “consultation”. Not all of the work of oversight and constitutional accountability lies with the courts. The first and most important line of accountability is that of the legislatures themselves. The Supreme Court was correct in identifying the fact that Ministers in the preparation and introduction of legislation are carrying out a legislative function. As such they are fully accountable to the legislature for the way in which they carried out, or failed to carry out, their legislative functions. It is up to the legislature to hold the government to account for both the content of legislation as well as the means adopted by the government in preparing the legislation. The legislature has a responsibility to require of the government an explanation of how it carried out its consultations. At the same time, there is a responsibility of indigenous groups to bring their concerns to the legislature. There are, or should be, mechanisms put in place by legislatures that will allow for these matters to be brought to the attention of legislatures. The role of the legislature in this case is not to be a substitute consultative body (although it could choose to carry out its own consultations independent of government) but rather to hold the government to account for its failure to consult. If legislatures are concerned with protecting the rights of indigenous peoples they have a responsibility to do their job in holding the government to account for carrying out its constitutional duties to indigenous peoples. They should develop a robust process for examining how the Crown carried out its obligations and where it is not satisfied, require the government to fulfill these responsibilities before it is prepared to consider the government’s proposed legislation. If legislatures accept this challenge, not only will it ensure that governments do fully consult, it will involve all Canadians, through their elected representatives, in discussions of the effect of legislation on indigenous groups, and result in legislation that more consistent with Canada’s constitution.
As Justice Rowe points out, the enactment of legislation is complex and time consuming. But when the right questions are asked, and the responses considered throughout the legislative process, not only are the rights enshrined in the constitution protected, but the democratic institutions are strengthened.
For more on the ways in which legislatures can act to hold the government to account and protect rights see Steven Chaplin “Political and Parliamentary Accountability as an Aspect of Public Law”, 10 Journal of Parliamentary and Political Law 277.