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Crown's Duty to Consult Aboriginal Peoples Regarding Legislation

Published: 01/26/2017

By Thomas Isaac, Arend J.A. Hoekstra

Canada (Governor General in Council) v Courtoreille1

On December 12, 2016, the Federal Court of Appeal overturned a Federal Court decision and provided further guidance on the Crown’s duty to consult Aboriginal peoples in the context of the development of legislation.

The facts of the case date back to 2012, when the Minister of Finance introduced two omnibus bills in Parliament which made significant changes to Canada’s environmental laws. The bills had the effect of reducing the number of bodies of water within Canada which were required to be monitored by federal officials, thereby potentially affecting fishing, trapping and navigation.2

The Mikisew Cree of northeast Alberta argued that since the legislation would affect their treaty rights to hunt and fish, the Crown should have consulted with them during the legislation’s development and upon its introduction to Parliament.3 

Constitutional Reasons - Separation of Powers

The majority found that the Court should not interfere by requiring consultation and must respect the principle of separation of powers under Canada’s constitutional order: “if there is one principle that is beyond any doubt, it is that courts will not supervise the legislative process and will provide no relief until the bill has been enacted.”4 Not only does such requested interference offend parliamentary privilege, it is also largely unnecessary since the courts may review legislation once it has been enacted. As seen in Ross River Dena Council v Government of Yukon5, a Court could deem a statute defective if it allowed a decision maker to impinge on Aboriginal rights. Ultimately, the Court agreed with the Alberta Court of Appeal’s position in R. v Lefthand6 that “enactments must stand or fall based on their compliance with the constitution, not based on the processes used to enact them.”7

Practical Reasons – Limits on Consultation for Issues of a General Nature

The concurring justice, J.A. Pelletier disagreed with the constitutional reasoning above, but found that consultation was not necessary since the legislation at issue was of a general nature and consultation was therefore impractical. Since many Aboriginal groups were affected by the proposed legislation, each to varying degrees, consultation would invariably be time consuming and complex, and “at some point the ability to govern in the public interest [would be] overwhelmed by the need to take into account special interests.”8 Indeed, “the duty to consult cannot be conceived in such a way as to render effective government impossible; imposing a duty to consult with all Aboriginal peoples over legislation of general application would severely hamper the ability of government to act in the interests of all Canadians, both Aboriginal and non-Aboriginal.”9

Exceptions & Practical Applications

The Court suggested two circumstances where the duty to consult applies to legislators despite parliamentary privilege. The first instance is where a minister or legislator acts within delegated powers. For instance in Tsuu T’ina Nation10, the Water Act allowed the Minister of Environment to delegate the development of a water management plan with certain requirements including public consultations.  Since these powers were being exercised pursuant to legislation already in existence, they were not legislative in nature, and were thus subject to the Crown’s duty to consult.

Second, it may be prudent for legislators to consult with Aboriginal peoples in advance of enacting legislation that may affect the rights of Aboriginal peoples, in order to protect the legislation once enacted. As the Court said in relation to Charter rights, “[while] there is no free-standing right to be consulted on legislation that may affect one’s Charter rights ... that legislation might be harder for the government to justify under section 1 in absence of consultation.”11 In the case of Aboriginal and treaty rights, while the Court would not review the legislation until it had passed, prior consultation could be useful evidence of upholding the honour of the Crown.

Alternative Remedies for Aboriginal Peoples

As the SCC stated in Authorson v Canada (Attorney General),12  “the only procedure due any citizen of Canada is that proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent.”13 The Court had two suggestions for Aboriginal peoples looking to engage with legislators during the formulation of legislation: (i) take efforts to lobby government officials and members of Parliament, and (ii) seek to be heard before parliamentary committees once a bill has been introduced into the House of Commons or the Senate.14 Consistent with the functioning of Parliament, these suggested remedies do not flow from s.35 Constitution Act 1982 Aboriginal or treaty rights but rather from the privileges available to all Canadians.

Implications in Aboriginal Law and Law in General

In many ways this decision is not surprising given that the principles of separation of powers and parliamentary privilege are well-understood. However, the fact that the trial judge and the concurring appellate judge found that the Crown’s duty to consult could exist during the legislative process suggests that this likely remains a live issue.

This decision is a demonstration of the Court taking a disciplined approach to balancing the Crown’s duty to consult with other constitutional (and in the case of the concurring judgement, practical) considerations. Parliament is free to draft and enact legislation without encumbrance, but the application of legislation will be subject to the Crown’s duty to consult. This decision is consistent with both the Court’s deference to Parliament, and its oft-spoken desire for reconciliation between Aboriginal rights and the Crown.

For further information regarding this matter, please contact Thomas Isaac and Arend Hoekstra or any other member of the Aboriginal Law Group.
1 Canada (Governor General In Council) v Courtoreille, 2016 FCA 311[Courtoreille].
2 Courtoreille v Canada (Aboriginal Affairs and Northern Development), 2014 FC 1244 paras 4-5.
3 Courtoreille, supra para 6.
4 Courtoreille, supra para 59.
Ross River Dena Council v Government of Yukon, 2012 YKCA 14.
R. v. Lefthand, 2007 ABCA 206.
7 Courtoreille, supra para 47.
Courtoreille, supra para 92.
Courtoreille, supra para 92.
10 Tsuu T’ina Nation v. Alberta (Environment), 2010 ABCA 137.
11 Courtoreille, supra para 56.
12 Authorson v Canada (Attorney General), 2003 SCC 39.
13 Courtoreille, supra para 52.
14 Courtoreille, supra paras 61 and 62.