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In a previous post, we referred to a challenge that the Mikisew Cree First Nation had brought against the Government of Canada with respect to changes to environmental legislation such as the Navigable Waters Protection Act (now significantly narrowed in scope and re-named the Navigation Protection Act). Mikisew argued that in passing the legislation without notifying the First Nation or asking for its input, the Crown had breached its constitutional duty to consult.

Mikisew’s territory encompasses an area in and around what is now northeastern Alberta and contains a number of water bodies that were protected under the old legislation. However, when Parliament enacted Bills C-38 and C-45 – the Omnibus Bills passed by Parliament in 2012 – a number of federal environmental protection measures were weakened, and a number of water bodies in that territory were removed from federal oversight.

As a result, the Mikisew’s rights to pursue hunting, fishing and trapping activities in the territory – rights that are protected by treaty – are now more vulnerable to unconstrained use and exploitation of their lands and resources.

Mikisew asked the Federal Court to declare that, because the new legislation had the potential to impact treaty rights, the government Ministers who drafted the Bills had a duty to consult with the Mikisew when preparing the policies that would eventually become law. They also sought injunctions to prevent the changes from taking effect.

This case placed the Crown’s constitutional duty to consult – a binding and enforceable duty that arises whenever the Crown's actions have the potential to adversely affect an Aboriginal claim or right – in tension with the long-standing principle that the judiciary will not interfere with the process of creating and passing legislation.

The Court found that some of the legislative amendments posed a sufficient risk to Mikisew fishing, hunting and trapping rights that they triggered the duty to consult at the moment the Omnibus Bills were introduced in Parliament. Mikisew was entitled to receive notice of the relevant provisions and to make submissions on them.

Ultimately, however, the Court declined to grant an injunction as it would be would be next to impossible to define the scope of such an injunction and, in any case, it would constitute an unacceptable intrusion by the courts into the legislative process.

This decision is notable for how it characterizes the scope of the duty to consult. The duty arises not only when physical works are proposed, but also when Parliament or a provincial legislature proposes to change legislation in a way that affects Aboriginal rights. This is a sensible position, in light of the principle that the government cannot legislate out of its constitutional obligations. If the Crown is required to consult with affected Indigenous communities before it grants a logging licence, common sense dictates that consultation should also take place before the Crown eliminates the need for a licence in the first place.

It is unfortunate that the Court chose the introduction of a bill into Parliament as the moment when the duty to consult is triggered. The evidence in this case suggested that this step does not occur until relatively late in the legislative process, and that bills become more and more difficult to change as they advance as the process goes on.

However, imposing the duty to consult at this stage may also force Parliament to spend more time deliberating and debating certain bills, as the necessary consultation takes place. Bills C-38 and C-45 in particular were notable for the startling speed with which they passed through Parliament. If the government has to pause and conduct consultations, then just maybe a bill – created by government Ministers away from the public’s gaze – will benefit from the additional time and transparency, and will be subject to more meaningful debate.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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