Focus On

Aboriginal Law - Aboriginal status and rights - Duties of the Crown - Fair dealing and reconciliation - Consultation and accommodation

Thursday, January 26, 2017 @ 7:00 PM  


Appeal by The Governor General in Council, Minister of Aboriginal Affairs and Northern Development, Minister of Finance, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport, and Minister of Natural Resources (the “appellants”) and cross-appeal by Chief Courtoreille from a judgment allowing in part Courtoreille’s judicial review application which claimed that the appellants breached their duty to consult the Mikisew Cree on the development and introduction in Parliament of two omnibus bills that reduced federal regulatory oversight on works and projects that might affect their treaty rights to hunt, fish and trap. In 2012, the 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. The Mikisew Cree alleged that the 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 allowed 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 could affect their treaty rights; accordingly, the Crown should have consulted with it during the development of that legislation and upon its introduction in Parliament. The Mikisew Cree sought declaratory and injunctive relief against the Crown before the Federal Court. The judge found that the reduction of navigable waters that were protected under the Navigation Protection Act and the reduction of protection to fish habitat under the Fisheries Act constituted a sufficient potential risk to fishing and trapping rights to trigger the duty to consult. The judge issued a declaration requiring the Crown to consult upon introduction of the bills in Parliament.

HELD: Appeal allowed; cross-appeal dismissed. The declaration was struck. Legislative action was not a proper subject for an application for judicial review under the Federal Courts Act. Importing the duty to consult to the legislative process offended the separation of powers doctrine and the principle of parliamentary privilege. This case was manifestly insufficient to support the proposition put forward by Courtoreille and to depart from the well-established principles governing the jurisdiction of the Federal Court pursuant to ss. 18 and 18.1 of the Federal Courts Act. The source of the power that the appellant ministers exercised and which was the true object of Courtoreille’s complaint was legislative in nature and derived from their status as members of Parliament. Therefore, the matter was not a proper subject for an application for judicial review under the Federal Courts Act. When ministers were engaged in the law-making process, at whatever stage, they were not acting as statutory decision-makers but as legislators, and their actions and decisions were immune from judicial review. The judge erred by failing to respect the doctrine of separation of powers or the principle of parliamentary privilege. The judge erred by issuing the declaration. The declaration was inconsistent with his previous findings that courts shall not intervene in the law-making process as it would be an undue interference with Parliament’s process and sovereignty, and it also failed to recognize that no court had ever claimed jurisdiction over the introduction of legislation in Parliament. Imposing a duty to consult at any stage of the process, as a legal requirement, was not only impractical and cumbersome and would potentially grind the legislative process to a halt, but it would fetter ministers and other members of Parliament in their law-making capacity.