Court Ruling Expands Duty to Consult to Law Making Process?


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Late December 2014 the Federal Court ruled that the Canadian Government breached its duty to consult obligations to aboriginal groups when it drastically changed its federal environmental policies in 2012.(1)

The complaint was initiated by the Mikisew Cree of Alberta who argued that they were left out of the legislative development process of the 2 Omnibus Bills in 2012. The bills focused on budget cuts, including cuts in environmental protection, which had the potential to run contrary to First Nations treaty rights and constitutional guarantees protecting their lifestyle and livelihood. This triggered a duty to consult by Canada, the Mikisew claimed, a duty that Canada did not respect.(1)

The duty to consult had not been extended to the law making process before. Hence, I was intrigued when I first heard about it and wanted to see how the case would develop.

Back to the Mikisew, they were not merely speculating on the implications of these legislative proposals passing without adequate scrutiny. In the name of economic prosperity Bills C-38 and C-45 drastically skinned and gutted the protective substance of environmental legislation people like the Cree relied on as buffer from western development projects. These included the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, and the Canadian Environmental Impact Assessment Act. For the Mikisew, legislative alterations implied reduced protection of freshwater, impacting Treaty 8 territory, and in turn, Mikisew livelihood. Their dependence on generations of traditional fishing, trapping, and travel was now in jeopardy.(2)(3)

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It is not the first time groups have turned to the Courts to reaffirm civil rights. The government’s duty to consult obligation is something that was established in the Haida Nation v. BC Minister of Forests case back in 2004, when the Supreme Court extended aboriginal rights considerations to contemplations by the government that have the potential to affect native or treaty rights (4).  Clearly, contemplations with wide sweeping results as those in question here ought to have triggered such a duty.

The Federal Court’s decision on this matter is kind of a big deal. It officially declared to have shared the opinion that the Crown ought to have consulted with the Mikisew when the bills were introduced into Parliament due to the sweeping consequences argued. This reaffirms the potential of the mandated policies to have negative consequences and paves the way for further scrutiny on future legislation approval in favour of aboriginals and the environment.(1)(3)(5)

It is unfortunate though, that the Court did not go further. The Court drew a distinction between legislation development and legislation approval and emphasized its stance not to meddle with legislative matters as far as bills are still being drafted.(3)(5)

In my past experience studying judicial politics and constitutional legal matters this reluctance makes perfect sense. Courts are often cautious about tampering with Parliamentary jurisdiction. Judicial remedies on questions of rights breaching government conduct that some claim valid judicial mandates(6) and proper dialogue, are accused by others of judicial supremacy.(7) Issues of policy get especially controversial.(7)

This implies that the core of the controversy in passing an omnibus bill – namely the decision making process on its content – remains backdoor politics; aboriginal groups only get access to a legislation document (bill) already produced, with no chance to really influence what goes in the design that potentially impacts their lives.

At least though, as JFK law corporation also pointed out, it was a progress nevertheless: “This is the first time a court has squarely addressed the issue of whether the duty to consult attaches to any part of the law making process”…and concluded that it is in fact triggered once a completed bill is introduced.(5)

References

  1. West Coast Environmental Law. (2014, December 22). Federal Court: Canada Acted Unconstitutionally in Ramming Through 2012 Environmental Law Changes. Retrieved February 1st 2015, from http://wcel.org/media-centre/media-releases/federal-court-canada-acted-unconstitutionally-ramming-through-2012-envir
  2. Shared Value Solutions. (2014, December 21). 5 Reasons Why the Mikisew Legal Victory a Victory for Canada’s Environment. Retrieved February 4th, 2015, from http://info.sharedvaluesolutions.com/blog/5-reasons-the-mikisew-legal-victory-a-victory-for-canadas-environment
  3. Federal Court of Canada. (2014, December 19). Mikisew First Nations v. Canada, Judgement and Reasons. Retrieved February 1st, 2015, from http://wcel.org/sites/default/files/T-43-13%20RJJ%20RHD%20%28%20Dec%2019%202014%29.pdf
  4. Maria Morellato. Research Paper for the National Centre for First Nations Governance. (2008, February). The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights. Retrieved February 8th, 2015, from http://fngovernance.org/resources_docs/Crown_Duty_to_Consult__Accommodate.pdf
  5. JFK Law Corporation. (2015, January 18). Legislative Changes to Federal Environmental Laws – Duty to Consult Triggered. Retrieved February 8th, 2015, from http://www.jfklaw.ca/legislative-changes-to-federal-environmental-laws-duty-to-consult-triggered/
  6. After all, Section 52 of the Constitution and more precisely S. 24(1) of the Charter affirm judicial authority by claiming, interested parties may turn to a court of competent jurisdiction to have any matter of law reviewed and grant discretion for remedies rendered.
  7. James Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent (Vancouver, University of British Columbia Press, 2005
  8. Retrieved February 10th, 2014, from  https://www.google.ca/search?q=duty+to+consult&biw=1280&bih=923&source=lnms&tbm=isch&sa=X&ei=6NnaVJXtDYGgyATY2YGgDg&sqi=2&ved=0CAcQ_AUoAg#imgdii=_&imgrc=3P2-HmGJwGLCCM%253A%3BfBjIrDvA5iloXM%3Bhttp%253A%252F%252Fwww.troymedia.com%252Fwp-content%252Fuploads%252F2014%252F11%252Fcircle_gavel_head.png%3Bhttp%253A%252F%252Fwww.troymedia.com%252F2014%252F11%252F16%252Fcommon-misconceptions-about-the-duty-to-consult%252F%3B280%3B207   
  9. Retrieved February 10th, 2014, from https://www.google.ca/search?q=athabasca+river&biw=1280&bih=923&source=lnms&tbm=isch&sa=X&ei=zt3aVKiFDI78yQSH3YK4BQ&sqi=2&ved=0CAcQ_AUoAg#imgdii=_&imgrc=bp5m4hIBjP2XgM%253A%3BbyExlTcdURE5uM%3Bhttp%253A%252F%252Fwww.ramp-alberta.org%252F_system%252FThumbnailCache%252FUserFilesImageAthabasca~downstream~of~Muskegjpg.700.-1.2091386766.jpg%3Bhttp%253A%252F%252Fwww.ramp-alberta.org%252Friver%252Fgallery.aspx%3B700%3B525