Summary

Keywords

Courts - Treaty rights, Aboriginal law - Aboriginal law - Treaty rights - Duty to consult - Legislative process - Crown introducing Omnibus Bills with changes to environmental and regulatory approval legislation, and failing to consult with Aboriginal groups - Judicial review application seeking declaration with respect to duty to consult - Federal Court issuing declaration that Crown ought to have consulted appellants on certain aspects when bills introduced into Parliament - Court of Appeal setting aside declaration and dismissing judicial review application - Whether duty to consult applies to legislative process as justiciable legal duty - How should separation of powers between courts and Parliament be respect in context of judicial review concerning duty to consult during Parliamentary legislative process? - Whether s. 2(2) or s. 18.1 of Federal Courts Act precludes judicial review of executive branch’s role in legislative process - What remedy, if any, should be granted in this case? - Federal Courts Act, R.S.C. 1985, c. F-7, ss. 2(2), 18.1.

Summary

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In 2012, the Minister of Finance introduced two omnibus bills that amended Canada’s environmental protection and regulatory legislative scheme. Canada did not consult the appellants Mikisew Cree First Nation et al. on these changes. In 2013, Mikisew filed a judicial review application seeking declaratory and injunctive relief, alleging that the responsible federal Ministers and the Crown as a whole had a duty to consult Mikisew regarding the development of the amendments, to the extent that they had the potential to affect Mikisew’s rights under Treaty 8.

The Federal Court allowed the judicial review application in part, issuing a declaration on the duty to consult with respect to some of the legislative changes in question. The Federal Court concluded that although there is generally no duty to consult before a bill is introduced into Parliament (by reason of the principle of parliamentary sovereignty and the doctrine of the separation of powers), the Crown was under a duty to consult Mikisew here when the bills were introduced in Parliament - i.e., to give notice to Mikisew and a reasonable opportunity to make submissions.

The Federal Court of Appeal allowed Canada’s appeal, set aside the declaration, and dismissed the application for judicial review, finding that legislative action was not a proper subject for judicial review. The majority judgment (De Montigny J.A., with Webb J.A. concurring) concluded that the Federal Court had no jurisdiction under the Federal Courts Act; the source of the power exercised by the Ministers in introducing the Omnibus Bills was legislative in nature, and the Ministers’ actions were therefore precluded from judicial review. As well, importing the duty to consult into the legislative process offends the doctrine of the separation of powers and the principle of parliamentary privilege. A concurring judgment (Pelletier J.A.) concluded that the duty to consult was not in fact triggered by laws of general application, as was the case here. Mikisew’s cross-appeal of the initial declaration was also dismissed.