Change of Direction Required

Case comment on Mikisew Cree First Nation v. Canada


In October 2018, the Supreme Court of Canada released its much-awaited decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.

The decision arose from Mikisew Cree First Nation’s judicial review application, in which it argued the Crown failed to discharge its constitutional duty to consult prior to enacting changes to environmental review legislation, which would impact Mikisew’s treaty rights to hunt, fish and trap.

At the Supreme Court (“Court”), the majority held that the duty to consult is not triggered by the development of legislation, because recognizing a duty to consult in the law-making process would require courts to improperly trespass on the legislative arm of government and lead to inappropriate judicial incursion on the workings of the legislature.

The Court also held that recognizing a constitutionally-mandated duty to consult in the development of legislation would be highly disruptive to the legislative process and could “effectively grind the day-to-day internal operations of government to a halt.”

Consequently, the Court concluded that prior to the enactment of legislation there is no constitutional obligation to consult Indigenous peoples about how that legislation could affect their Aboriginal rights and treaty rights.

Importantly, the Court emphasized that the fact that the duty to consult was not triggered in relation to the development of legislation did not absolve the Crown of its obligation to conduct itself honourably. The fact that the legislative process is not subject to judicial review should not “diminish the value and wisdom” of consulting Indigenous peoples prior to enacting legislation that has the potential to adversely impact their Aboriginal rights and treaty rights, even where there is no recognized constitutional obligation to do so.

In dissenting reasons, Justices Abella and Martin concluded that the honour of the Crown gives rise to a duty to consult that applies to all contemplated government conduct with the potential to affect Aboriginal rights and treaty rights, including the development of legislation. They also rejected the majority’s view that extending the duty to consult to legislative action would be unworkable or cause undue interference by the courts in the legislative process. They noted that in many cases, a declaration in the context of the legislative process would be an appropriate remedy.

Mikisew represents a missed opportunity. Rather than causing disruption and chaos, a decision that the duty to consult applies to legislative development could have set the stage for respectful engagement with Indigenous peoples about the development of the law, and in turn avoid a multitude of potential legal challenges to legislation that affects Aboriginal rights and treaty rights.

Importantly, it would be an error for federal and provincial governments to assume that, based on Mikisew, they can ignore the rights and interests of Indigenous peoples when drafting legislation. The reasons of both the majority and dissenting judges in Mikisew provide strong, clear affirmation that the Crown should engage directly with Indigenous peoples, both in order to fulfil its obligation to act honourably and to avoid the prospect of future litigation in respect of legislation which infringes the rights of Indigenous peoples.

While the entire Court in Mikisew identified different opportunities for Indigenous peoples to challenge federal and provincial legislation that affects their constitutional rights, at the end of the day the decision underscores the need for a new path forward.

Indigenous peoples should not be forced to fight for a place at the table in the development of the colonizers’ laws. Real reconciliation requires recognition of Indigenous peoples’ inherent law-making authority and its place within Canada’s constitutional order.