Did the Supreme Court of Canada contradict itself on Canada's Duty to Consult Indigenous people last October in its ruling on the Misikew Cree First Nation case? After the 2018 Trans Mountain decision, it might seem so. We break down the details of this Supreme Court decision with Hugo Choquette, the developer and Instructor of LAW 202/702: Aboriginal Law.

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00:02 Matt Shepherd: Welcome to Fundamentals of Canadian Law. I'm Matt Shepherd. Many people were surprised in 2018 when a national pipeline project was effectively halted by the Supreme Court over something called, the duty to consult indigenous people. So it was doubly surprising, when in October of last year, the Supreme Court made another decision that said there was not such a duty. These may seem like contradictory decisions but they're not. And to help us understand, I'm joined by Hugo Choquette, the developer and Instructor of LAW 202/702: Aboriginal Law, at the Certificate of law from Queen's. We're gonna talk about the duty to consult, how it plays out at different stages of the legislative process and how the Supreme Court, while on its face, may be seeming to be contradicting itself, is actually following a very consistent set of ideas about the law.

00:54 MS: If you're not familiar with the duty to consult, you may wanna listen to our podcast from last September about the Trans Mountain Pipeline, which lays out more of the details and principles, before you listen to this one. In this episode, we kind of jump right into it. This podcast is brought to you by The Queen's Certificate in Law, the only online certificate in law offered by a law faculty in Canada. You can find it more and takelaw.ca.


01:23 MS: So let's talk about the Mikisew Cree First Nation.

01:25 Hugo Choquette: Sure. So the decision was definitely not the way that the First Nation had intended it to go, and the Supreme Court unanimously decided that there was no... Well, I shouldn't say that. So there was a preliminary issue, which was whether the Federal Court of Appeal and the Federal Court at all should have been able to deal with this issue in any event, which the court unanimously decided was not the case. So they sort of unanimously said this was the wrong forum to bring this claim in any way. But on the important decision of whether there is a duty to consult, and the real question in this case, was whether the duty to consult applies at the legislation making stage.

02:02 HC: So just to give you the factual background to the case again. This arose in 2012 when the Conservative government then brought in some legislation, some major changes to environmental legislation, the biggest piece being the Environmental Assessment Act, as part of these two omnibus bills, and so this was a huge piece of legislation that contained many, many items, and they all put them through at the same time. So there was very little opportunity to make any kind of representations to the legislature at that time, to the House of Commons. And so the Mikisew Cree First Nations basically challenged that process on the basis that they should have been consulted, because of course the changes through the legislation would affect their, possibly affect, their Aboriginal treaty rights, including treaty rights to hunt and fish, which would be covered by... Could possibly be affected by changes to the Environmental Assessment Act and the possible greater opportunities to have more development projects, etcetera.

03:02 HC: And so the question really was then, Does the duty to consult apply at the legislation making stage? And you might think that it would, because the duty, of course, as we saw, we discussed in a previous podcast, is always on the Crown, and the ministers of the Crown who represent the Crown in all of its actions, are involved of course in drafting the legislation, at least at the conceptual stage. There the minister is the cabinet. And so that was the argument that the Mikisew Cree First Nation put forward, was that really they should be... When they're drafting this legislation, they should have a duty to consult any First Nations involved. Now, the court said, and only two of the judges that Justice Isabella and she was joined in that judgment by Justice Martin would have actually imposed a duty to consult at the stage of drafting the legislation. And the other judges all pretty much said that this would be an undue interference with the idea of the separation of powers.

03:58 HC: And so I imagine you probably have in another podcast also looked at that fundamental concept, which is that the three branches of government; the executive, the judicial and the legislative, are separate and have separate roles in that, generally speaking, one branch shouldn't interfere with the role of another branch. And so here the judges felt that it would be an undue interference with the role of the legislative branch, and they also brought up a few of the practical concerns that they had in terms of how this would play out. So one of the things they mentioned, probably not the most convincing, but is the fact that this would slow down the legislative process, unduly slow down. So if every piece of legislation, so goes the argument anyway, has to be subject to consultation before it's enacted or even before it's even put before the House of Commons, that this would create a... This would make an already lengthy process into a... It would grind it to a halt, basically.

04:55 MS: So is this a concern they're raising about all legislation or just kind of the sorts of legislation that go into drafting these big omnibus bills when a bunch of things are crammed into one piece?

05:06 HC: So unfortunately, the challenge couldn't be just to the process of doing omnibus bills, because that is a recognized possibility for government and it's no different in that sense than any other piece of legislation. You can put as many items in it as you want. Whether that's politically acceptable or not is a different story. But legally speaking, there's really no difference with that process as opposed to just a single bill. And so the challenge, really, was on the basis of whether any legislation that might potentially affect aboriginal treaty rights would then be subject to a duty to. So the Crown would then be subject to a duty to consult as part of that process.

05:44 MS: So the contention then is that, if you impose this on all legislation, it's gonna slow down legislation, period?

05:50 HC: Yeah. So the concern would be that any legislation that might possibly have an adverse effect on aboriginal treaty rights, and that would cover a large range of possible legislation, would then be subject to a duty to consult, and a consultation process that might slow down the work of Parliament. And then they raised some other practical concerns that are perhaps more legitimate, such as the fact that even if, for example, the judges who argued that there wasn't duty to consult said, "Well, even if Crown were to consult, there's no saying that the bill couldn't then be amended by Parliament after the fact to remove the product of the consultation. In other words, let's say the Crown consults and comes to an agreement with the First Nation, then Parliament would be free to amend the bill and get rid of any accommodations that were in the bill. So some of these concerns seem to have some merit to them, but on the whole, of course, the bottom line is that this is basically just an argument which is not really based on empirical evidence. There is no evidence that this would in fact be the case that this would slow down.

07:00 HC: The interesting sort of dichotomy here is that the court basically made it very clear that even though ministers always play a role in representing the Crown in the legislative process, they are not acting in their executive capacity. So when a minister introduces a bill in the House of Commons or whether they're drafting in the process of conceptualizing and drafting legislation, they're acting as part of the legislative process, and not in their executive capacity. Now, the three judges, Justice Karakatsanis in her judgment and she was joined by the Chief Justice Wagner and I believe Justice Rowe. They also noted that there might be a possibility, and they raised is very interesting possibility, that legislation might be challenged on the basis of the honour of the Crown, once it has been enacted, even before it's implemented, that it could be that if legislation is enacted in a way that disregards the duty to consult, in other words, the claims of possible First Nations or other aboriginal peoples, in the process, that it could possibly be challenged under the constitution because of the fact that the honour of the Crown is an overarching principle and is always at play in the grounds of dealing with indigenous peoples.

08:08 MS: So it feels kind of like nobody's saying that the duty to consult isn't important, but when it's most appropriate seems to be what's kind of being continually debated here.

08:21 HC: Yeah. And one of the important things to remember about the duty to consult, and I know I mentioned this before, but I think it's critical to understand in order to make sense of these decisions, is that it applies even when rights are considered unproven in our legal system. So, one of the big things is that, of course, any aboriginal right, or for example, aboriginal title, which is a form aboriginal right that allows you to control land, has to be proven in court, as the Chilcotin people did in the 2014 decision in Chilcotin, where they received the a declaration from the court that they had aboriginal title, but those cases are very few and fairly rare because of the immense amount of resources that it involves to bring these cases to trial and have them validated by the court. And so, one of the things that happens is that the duty consult actually applies much before that. It applies any time there's a claim of an aboriginal right or treaty right being infringed. And so, one of the things that this decision does is it sort of forecloses the idea that you could have meaningful and put into legislation at that stage, because ultimately, once legislation is passed, currently the only way you could challenge it would be as an infringement under Section 35.

09:37 HC: Now once, if there's any implementing action by the Crown you could challenge that action with the duty to consult. You could say, "Well, before they implement this legislation, they would have to consult with us." But as far as challenging the legislation itself and stating that it's unconstitutional, your only avenue would be if you had a proven right, unless this idea that the first group of judges put forward that there could possibly be something in the honour of the Crown, as an independent principle that would allow you to invalidate legislation on that basis before it's even implemented, right? And so that's where it becomes a problem, because it puts aboriginal groups in a position where they're having to expend a lot of resources in order to be able to change legislation, because of course, the onus will be on them to bring new cases to court, and to make sure that they challenge the legislation and bring these novel claims to court, which may not be feasible for many groups.

10:34 MS: And they'd have to bring these novel claims, kind of, if you look at it as a process, at the very end of the process.

10:41 HC: Yeah, it would have to be once... Essentially once the legislation is approved and enacted, then they would be able to possibly bring a claim according to some of the judges. According to other judges, it would even be, and that seems to be the majority opinion, it would be even beyond that. It would be when the Crown is implementing the legislation. So you couldn't actually challenge the validity of the legislation itself. You would have to wait until the Crown was doing something to implement it, and at that point, you could possibly bring a claim.

11:09 MS: So how is that more resource intensive than if this decision had gone another way? Is it more resource intensive to do that at the implementation stage than it would be to do it as kind of at the draft legislation stage?

11:21 HC: Well, it depends. One of the biggest criticisms of the decision is that it's all about whose resources are being expended, because of course, if it was part of the legislative process, there would be the Crown and the legislative House of Commons resources that would be expended, but if you have to wait until the legislation is enacted, then it's the First Nations or the aboriginal groups challenging the legislation who have to invest the resources in bringing the challenge to court. And so, it really puts the onus on them as opposed to taking a proactive stance of saying to the Crown, "You need to consult before you enact this legislation to head off any possible challenges down the road."

12:02 HC: Now, of course, that may still be the best practice, and the court does recognize that, and in fact, in some provinces it's become policy that governments will consult with indigenous groups before they enact legislation, and also there's a possibility where, and this has happened in several cases, where there's modern treaties; so where there's land claims agreements or modern treaties with the Crown, one of the provisions that might be inserted in those treaties is a requirement to consult on legislation that may affect any of the rights guaranteed under the treaty. So that's one option that's open as well, but again, this has to be negotiated with the Crown as part of a modern treaty.

12:42 MS: But this effectively shuts the door on the idea that the government must consult at the legislative stage.

12:48 HC: That's right.

12:48 MS: Okay.

12:48 HC: It essentially insulates Parliament as an institution from the duty to consult, which is one of the biggest criticisms that Justice LeBel had, because in a very early decision, in the Sparrow decision, which is sort of the ground foundational decision in this area of law, the court had recognized that parliament's sovereignty would be limited by the duty to... Or not the duty to consult but by aboriginal, by Section 35, the provision that guarantees aboriginal and treaty rights. And so, according to Justice LeBel anyway, this is sort of walking back from that and suggesting that Parliament is insulated from any operation of the duty to consult.

13:24 MS: Right.

13:25 HC: It's only the Crown as an executive, the Crown as executive, that actually owes the duty.

13:30 MS: So this happened in October of 2018?

13:33 HC: That's right.

13:33 MS: And then earlier, in 2018, there was another Supreme Court decision about duty to consult, that basically put a halt to the Transnational Pipeline. Are these decisions coherent from one to the next? Is the Supreme Court kind of acting consistently when it's doing these things?

13:49 HC: I think it is, and it's appears inconsistent because the results are very different. And unfortunately, the way that these decisions get played in the media often can sometimes distort the real impact of the decision. So, in the Trans Mountain case, for example, it was very much viewed as an unconditional victory for the First Nations involved. The reality is that courts will interfere in the procedural aspect of the duty to consult, and they will suggest that one form of process might be better than another. But they generally will not interfere in the results. And so, one of the things that happens is that the decision might seem like it's suggesting that there wasn't adequate consultation, but it generally will focus on the process of consultation, and once the Crown can fulfill that process, the actual outcome of the consultation, whether there's accommodation or not, is not really something that the courts are willing to become involved. And similarly here, we see a very much a hands-off approach in the same way that parliament and legislatures know what's best in terms of enacting legislation and it's not for the courts to step in. So I think they're consistent in that.

15:01 HC: The courts, very much, ensure that there is sort of a process in place to ensure that there will be some consultation, but they're very reluctant to interfere in any significant way with the role, either of the executive or the legislative, when it comes to making the actual decisions in relation to consultation and accommodation.

15:20 MS: Right. And this most recent decision was made about three months ago. So I mean things do move slowly on these fronts.

15:26 HC: Yeah.

15:26 MS: But has there been any other developments since then?

15:30 HC: No, there's a number of cases that have referred to this decision and they're trickling up in the court systems, but generally speaking, there hasn't been. Now, the one other big thing that I should mention, which is not mentioned in the decision, but it's crucially important is that, that decision is not in line with the United Nations Declaration on the Rights of Indigenous Peoples. Because there is an article of the declaration, Article 23, that's explicitly states that indigenous groups should be consulted before legislation affecting their rights is enacted, and uses the well-known phrase, free, prior and informed consent. And so, one of the things that is now happening is that we have Bill C-262, which is a bill which purports to recognize the declaration as part of Canadian law. Now, the exact way in which that will happen is not very clear from the bill, unfortunately, but if the declaration becomes recognized in Canadian law and gains greater weight, it could be that this line of jurisprudence would then become out of step with Canada's international commitments, because clearly the declaration itself requires pre-existing consultation, and possibly even consent, before legislation that would affect the rights of indigenous peoples is enacted.

16:42 MS: But does the word enacted give the government here a little legal room? Because enacted can mean a variety of things. So if the duty to consult is supposed to be before the law is enacted, doesn't that also clear this kind of last stage?

16:56 HC: And I'm not using the exact language of the provision here, but there is some ambiguity in what exactly is required. But certainly it would seem that it would be a much more, a process that would involve the indigenous peoples concerned in a much more active way than what the current Mikisew Cree decision provides for in the legislative process at any rate. So, of course, all this will have to be interpreted by the courts in how exactly it will impact the situation. But one of the interesting things about the decision, from the majority, is that it doesn't really refer to the UN declaration and it doesn't really address the fact that this is a discrepancy, and so that's something that may yet affect this whole area of law again, of course.

17:40 MS: Well, thank you very much Hugo.

17:42 HC: Thank you.

17:46 MS: Thanks to Hugo Choquette. If you're interested in the relationships between Canada's indigenous people, and how they form part of Canada's tapestry of laws, you should check out LAW 202/702: Aboriginal Law at takelaw.ca. Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton who is also a staff member here at Queen's Law. You can find out more about her music at MeganHamiltonmusic.wordpress.com. For original illustrations for this podcast are by Valérie Desrochers. You can find her work at VDesrochers.com. Thanks for listening.