Mikisew Cree First Nation v. Canada (Governor General in Council)

Coram:

• Separate reasons by:
  • Justice Andromache Karakatsanis (Wagner C.J. and Gascon J. concurring)
  • Justice Rosalie Silberman Abella (Martin J. concurring)
  • Justice Russell Brown (Moldaver and Côté JJ. concurring)
  • Justice Malcolm Rowe (concurring with Justice Brown)

Case Summary:

The case involved the Mikisew Cree First Nation challenging the Canadian government for not consulting them when drafting two bills that could potentially harm their treaty rights, specifically their rights to hunt, trap, and fish under Treaty 8. The Mikisew argued that the government’s actions breached the “honour of the Crown,” which mandates the Crown to act honourably in its dealings with Indigenous peoples.

Key Legal Issues:

1. Duty to Consult: Whether the Crown had a duty to consult the Mikisew Cree First Nation when developing legislation that might affect their treaty rights.
2. Jurisdiction: Whether the Federal Court had jurisdiction to review the actions of Ministers in developing the bills.

Lower Court Decisions:

• Federal Court: The application judge ruled in favor of the Mikisew, stating that the government should have consulted them during the legislative process.
• Federal Court of Appeal: Overturned the Federal Court’s decision, ruling that the Federal Court lacked jurisdiction and that the duty to consult did not extend to the legislative process.

Supreme Court of Canada Ruling:

• Jurisdiction: All judges agreed that the Federal Court did not have the jurisdiction to review the actions of Ministers in the legislative process, as the Federal Courts Act only allows review of decisions made by a federal board, commission, or tribunal.

Majority Opinions on the Duty to Consult:

• Justice Karakatsanis: There is no duty to consult Indigenous groups during the legislative process. However, she emphasized that the honour of the Crown applies to both the executive and Parliament, meaning the Crown must still act honourably toward Indigenous peoples. She suggested that while the duty to consult is not required, other mechanisms should be developed to protect Indigenous rights.
• Justice Abella: Disagreed with Karakatsanis on the duty to consult. She argued that the honour of the Crown requires consultation when laws that might adversely affect Indigenous peoples are being made. She asserted that parliamentary sovereignty and privilege do not override the Crown’s constitutional obligations.
• Justice Brown: Agreed that the honour of the Crown applies only to the executive, not Parliament. He emphasized that Ministers, when acting in their legislative roles, are not bound by the duty to consult. For Brown, the judiciary should not intervene in the legislative process, and any challenge should be made after laws are passed.
• Justice Rowe: Agreed with Justice Brown and added that requiring consultation during lawmaking could complicate the legislative process, infringe on parliamentary independence, and create uncertainty. He stressed that courts should not supervise legislative dealings with Indigenous groups.

The Supreme Court ruled that there is no binding duty to consult Indigenous peoples during the legislative process. However, the honour of the Crown must still be maintained, and the rights of Indigenous peoples should be respected through other legal and procedural mechanisms. The ruling reflects a complex balance between parliamentary sovereignty, the separation of powers, and the need to uphold Indigenous rights.