Chief Steve Courtoreille on behalf of himself v. the members of the Mikisew First Nation, 2018 SCC 40

SUPREME COURT OF CANADA Citation: Mikisew Cree First Nation v.

Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765 Appeal Heard: January 15, 2018 Judgment Rendered: October 11, 2018 Docket: 37441 Between: Chief Steve Courtoreille on behalf of himself and the members of the Mikisew First Nation Appellant and Governor General in Council, Minister of Aboriginal Affairs and Northern Development, Minister of Finance, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport and Minister of Natural Resources Respondents - and - Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Champagne and Aishihik First Nations, Kwanlin Dün First Nation, Little Salmon Carmacks First Nation, First Nation of Na-Cho Nyak Dun, Teslin Tlingit Council, First Nations of the Maa-nulth Treaty Society, Assembly of First Nations, Grand Council of the Crees (Eeyou Istchee), Cree Nation Government, Manitoba Metis Federation Inc., Advocates for the Rule of Law, Federation of Sovereign Indigenous Nations and Gitanyow Hereditary Chiefs Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 53) Karakatsanis J. (Wagner C.J. and Gascon J. concurring) Concurring Reasons: (paras. 54 to 99) Abella J. (Martin J. concurring)

Concurring Reasons: (paras. 100 to 147) Brown J. Concurring Reasons: (paras. 148 to 172) Rowe J. (Moldaver and Côté JJ. concurring) Mikisew Cree First Nation v. Canada (Governor General in Council) , 2018 SCC 40, [2018] 2 S.C.R. 765 Chief Steve Courtoreille on behalf of himself and the members of the Mikisew Cree First Nation Appellant v.

Governor General in Council, Minister of Aboriginal Affairs and Northern Development, Minister of Finance, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport and Minister of Natural Resources Respondents and Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Champagne and Aishihik First Nations, Kwanlin Dün First Nation, Little Salmon Carmacks First Nation, First Nation of Na-Cho Nyak Dun, Teslin Tlingit Council, First Nations of the Maa-nulth Treaty Society, Assembly of First Nations, Grand Council of the Crees (Eeyou Istchee), Cree Nation Government, Manitoba Metis Federation Inc., Advocates for the Rule of Law,

Federation of Sovereign Indigenous Nations and Gitanyow Hereditary Chiefs Interveners Indexed as: Mikisew Cree First Nation v. Canada (Governor General in Council) 2018 SCC 40 File No.: 37441. 2018: January 15; 2018: October 11.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the federal court of appeal Courts — Federal Court — Jurisdiction — Judicial review — Parliament adopting legislation amending Canada’s environmental protection regime — First Nation bringing application for judicial review with respect to development and introduction of legislation — Whether Federal Court had jurisdiction to consider First Nation’s application — Federal Courts Act, R.S.C. 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal”, 2(2), 17, 18, 18.1.

Constitutional law — Aboriginal peoples — Treaty rights — Crown — Duty to consult — Parliament adopting legislation amending Canada’s environmental protection regime — First Nation not consulted on legislation at any stage of development or prior to granting of royal assent — First Nation seeking declaration that Crown owed and breached duty to consult since legislation had potential to adversely affect treaty rights to hunt, trap, and fish — Whether duty to consult applies to law-making process .

In April 2012, two pieces of omnibus legislation with significant effects on Canada’s environmental protection regime were introduced into Parliament. The Mikisew Cree First Nation was not consulted on either of these omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the legislation, since it had the potential to adversely affect their treaty rights to hunt, trap, and fish under Treaty No. 8.

The reviewing judge granted a declaration to the effect that the duty to consult was triggered and that the Mikisew were entitled to notice of the relevant provisions of the bills, as well as an opportunity to make submissions. On appeal, a majority of the Federal Court of Appeal concluded that the reviewing judge erred by conducting a judicial review of legislative action contrary to the Federal Courts Act . The majority held that when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review.

It deemed the reviewing judge’s decision to be inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. The Mikisew appealed. Held : The appeal should be dismissed. Per Wagner C.J. and Karakatsanis and Gascon JJ.: The Federal Court lacked jurisdiction to consider the Mikisew ’s application for judicial review. For the Federal Court to have jurisdiction over a claim, it must have a statutory grant of jurisdiction.

Section 17(1) of the Federal Courts Act provides that the Federal Court has concurrent original jurisdiction where relief is claimed against the Crown, which the Act defines as Her Majesty in right of Canada. However, this definition does not extend to executive actors when they are exercising legislative power. In this case, the Mikisew challenge actions which are uniformly legislative in character, therefore, their application is not against the Crown in its executive capacity.

In addition, ss. 18 and 18.1 of the Act only grant the Federal Court jurisdiction to judicially review action taken by a “federal board, commission or other tribunal”, defined in s. 2(1) of the Act as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown. Section 2(2) specifies that the Senate, the House of Commons, or any committee or member of either House is not included in this definition. Ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under

Part IV of the Constitution Act, 1867 . As such, when developing legislation, they do not act as a federal board, commission or other tribunal and their actions are immune from judicial review. Accordingly, the Federal Court was not validly seized of the Mikisew’s application for judicial review in this case. With respect to the duty to consult, the development of legislation by ministers is legislative action that does not trigger this duty.

The duty to consult is an obligation that flows from the honour of the Crown, a foundational principle of Aboriginal law which governs the relationship between the Crown and Aboriginal peoples. This duty requires the Crown to consult Aboriginal peoples before taking action that may adversely affect their asserted or established rights under s. 35 of the Constitution Act, 1982 and ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s. 35 rights.

Although the duty to consult has been recognized in a variety of contexts, Crown conduct sufficient to trigger the duty has only been found to include executive action or action taken on behalf of the executive. The duty to consult doctrine is ill-suited for legislative action. It is rarely appropriate for courts to scrutinize the law-making process, which includes the development of legislation by ministers. Longstanding constitutional principles underlie this reluctance to supervise the law-making process. The separation of powers is an essential feature of Canada’s Constitution.

It recognizes that each branch of government will be unable to fulfill its role if it is unduly interfered with by the others. Recognizing that a duty to consult applies during the law-making process may require courts to improperly trespass onto the legislature’s domain. Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. Recognizing that the elected legislature has specific consultation obligations may constrain it.

Parliamentary privilege also generally prevents courts from enforcing procedural constraints on the parliamentary process. Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature. Furthermore, the administrative law remedies normally available for breach of a duty to consult would invite inappropriate judicial intervention into the legislature’s domain, as the duty would require the judiciary to directly interfere with the development of legislation.

Applying a duty to consult to the development of legislation by ministers also raises practical concerns. If changes are made to a proposed bill to address concerns raised during consultation, these changes could later be undone by Parliament, as it is free to

amend the proposed law. This may limit the possibility of meaningful accommodation. Additionally, private member bills would nottrigger the duty, rendering the approach incongruous. Moreover, in the long chain of events contributing to the development oflegislation, disentangling what steps the duty to consult applies to (because they are executive) and what actions are immune (becausethey are parliamentary) would be an enormously difficult task. However, when legislation undermines s. 35 rights, Aboriginal groups are not left without a remedy.

The duty to consult isnot the only means to give effect to the honour of the Crown. Simply because the duty to consult doctrine, as it has evolved to regulateexecutive conduct, is inapplicable in the legislative sphere, does not mean the Crown is absolved of its obligation to conduct itselfhonourably. While an Aboriginal group will not be able to challenge legislation on the basis that the legislature had failed to fulfill theduty to consult, other protections may well be recognized in future cases when Aboriginal or treaty rights may be adversely affected bylegislation, such as declaratory relief.

Per Abella and Martin JJ.: There is agreement with Karakatsanis J. that the appeal should be dismissed on the grounds thatjudicial review under the Federal Courts Act is not available for the actions of federal ministers in the parliamentary process. However, there is disagreement with respect to the duty to consult. The enactment of legislation with the potential toadversely affect rights protected by s. 35 of the Constitution Act, 1982 gives rise to a duty to consult, and legislation enacted in breach ofthat duty may be challenged directly for relief.

The honour of the Crown governs the relationship between the government of Canada andIndigenous peoples. This obligation of honour gives rise to a duty to consult that applies to all contemplated government conduct with thepotential to adversely impact asserted or established Aboriginal and treaty rights, including legislative action. The honour of the Crown is always at stake in its dealings with Indigenous peoples, whether through the exercise oflegislative power or executive authority. It is a constitutional imperative giving rise to obligations on the Crown which are enforced bythe courts.

When the government contemplates conduct that might adversely affect Aboriginal or treaty rights, the honour of the Crowngives rise to a duty to consult and accommodate. This duty is more than just a means of upholding the honour of the Crown. The questionis not whether a duty to consult is appropriate in the circumstances, but whether the decision is one to which the duty to consult applies. Because the honour of the Crown infuses the entirety of the government’s relationship with Indigenous peoples, the duty toconsult must apply to all exercises of authority which are subject to scrutiny under s. 35.

This includes the enactment of legislation. Thisconclusion flows from the jurisprudential development of the duty to consult from an aspect of the infringement and justification analysisin R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, to an independent obligation in Haida Nation v. British Columbia(Minister of Forests), 2004 SCC 73, [2004] S.C.R. 511. No longer confined to the justification context, the duty to consult now formspart of the essential legal framework of Aboriginal law, and requires consultation wherever the potential for adverse effects on claimedor established s. 35 rights arises.

This approach recognizes that the legislative sphere is not excluded from the honour of the Crown.Endorsing such a void in the honour of the Crown would create a corresponding gap in the s. 35 framework, leaving Aboriginalrights-holders vulnerable to the same government objectives carried out through legislative, rather than executive, action. Although parliamentary sovereignty and parliamentary privilege are central to ensuring that the legislative branch ofgovernment is able to do its work without undue interference, these concepts cannot displace the honour of the Crown.

The issues in thisappeal require this Court to reconcile, not choose between, protecting the legislative process from judicial interference and protectingAboriginal rights from the legislative process. The right of Aboriginal groups to be consulted on decisions that may adversely affect theirinterests is not merely political, but a legal right with constitutional force. Cases which advocate against intrusion into the parliamentaryprocess must therefore be read in the context of a duty that is not only a constitutional imperative, but a recognition of the limits ofCrown sovereignty itself.

Parliamentary sovereignty should not be interpreted in a way that eradicates obligations under the honour ofthe Crown. Like all constitutional principles, parliamentary sovereignty must be balanced against other aspects of the constitutionalorder, including the duty to consult. Although parliamentary sovereignty cannot displace the honour of the Crown, its force as a constitutional principle must begiven adequate weight to achieve an appropriate balance between these concepts.

The flexibility inherent in the duty to consult doctrineshould be used to account for the wider area of discretion that legislatures must be afforded in the legislative context. Since the contentof the duty to consult depends heavily on the circumstances, there is no reason why the unique challenges raised in the legislative spherecannot be addressed by the spectrum of consultation and accommodation duties.

Further, not every legislative effort triggers the duty toconsult — it is triggered only where the Crown, with knowledge of the potential existence of the Aboriginal right or title in question,contemplates enacting legislation that might adversely affect it. The procedure and scope of remedies available where the government breaches its duty to consult in the law-making processis also limited by the constitutional balance between the judiciary and the legislature. Institutional constraints in the legislative contextrequire that applicants challenge existing legislation.

It would unduly interfere with the legislative process to allow direct challenges to alegislature’s procedure prior to the enactment of legislation. While it is not the role of the courts to dictate the procedures legislaturesadopt, they may consider whether the chosen process accords with the special relationship between the Crown and Indigenous peoples.Challenging existing legislation on procedural grounds is not a novel proposition in Canadian law. A successful Haida Nation challenge will not, however, necessarily invalidate legislation.

The duty to consult is aboutencouraging governments to consider their effects on Indigenous communities and consult proactively, and should not replace theSparrow infringement and justification test or become a means by which legislation is routinely struck down. Without ruling out thepossibility that in certain cases legislation enacted in breach of the duty to consult could be struck down, a declaration will generally bethe appropriate remedy. This allows courts to shape the legal framework while respecting the constitutional role of another branch ofgovernment to act within those constraints.

Therefore, an Indigenous group will be entitled to declaratory relief where the Crown hasfailed to consult during the process leading to the enactment of legislation that could adversely affect its interests. Per Brown J.: There is agreement that the appeal should be dismissed on the grounds that the Federal Court did not havejurisdiction to consider the application for judicial review.

Even absent this jurisdictional bar, however, the separation of powers, parliamentary privilege, the scope of judicial reviewproperly understood and the existing jurisprudence on the duty to consult all lead to the conclusion that the Mikisew’s application forjudicial review cannot succeed. The entire law-making process — from initial policy development to and including royal assent — is anexercise of legislative power which is immune from judicial interference. The making of policy choices is a legislative function, whilethe implementation and administration of those choices is an executive function.

This precludes judicial imposition of a duty to consult inthe course of the law-making process. The formulation and introduction of bills is protected from judicial review by the separation of powers. In order for eachbranch of the Canadian state — legislative, executive and judiciary — to fulfill its role, it must not be unduly interfered with by theothers. Ministers of the Crown play an essential role in, and are an integral part of, the legislative process.

Their dual membership in theexecutive and legislative branches of the Canadian state does not render their corresponding executive and legislative rolesindistinguishable for the purposes of judicial review. In the instant case, federal ministers took a set of policy decisions that eventuallyled to the drafting of a legislative proposal, and then to the formulation and introduction of the omnibus bills in the House of Commons.All of these actions form part of the legislative process of introducing bills in Parliament and were taken by the ministers acting in alegislative capacity.

The formulation and introduction of bills is also protected from judicial review by parliamentary privilege, which isunderstood as freedom from interference with the parliamentary work of a Member of Parliament. Parliamentary privilege is essential toallowing Parliament to perform its constitutional functions by giving it the right to exercise unfettered freedom in the formulation,tabling, amendment, and passage of legislation.

While parliamentary privilege operates within certain constraints imposed by theConstitution, the duty to consult is distinct from the constitutionally mandated manner and form requirements with which Parliamentmust comply in order to enact valid legislation. The only procedure due any citizen of Canada is that proposed legislation receive threereadings in the Senate and House of Commons and that it receive royal assent.

While the Constitution’s status as the supreme law ofCanada operates to render of no force and effect enacted legislation that is inconsistent with its provisions, it does not empower plaintiffsto override parliamentary privilege. The development, introduction, consideration and enactment of bills is not Crown conduct which triggers the duty toconsult. Crown conduct triggering this duty must be understood as excluding the parliamentary functions of the Canadian state. The stepstaken as part of the parliamentary process of law-making, including royal assent, are not the vehicle through which the Crown acts.

Theexercise of Crown authority in enacting legislation (assenting, refusing assent to, or reserving legislative or parliamentary bills) islegislative. It is not an instance of Crown conduct — that is, executive conduct — which can trigger the duty to consult. The Crown doesnot enact legislation, Parliament does. Consequently, judicial review of the legislative process, including post-facto review of the process of legislative enactment,for adherence to s. 35 of the Constitution Act, 1982, and for consistency with the honour of the Crown, is unconstitutional.

That this isso, should not, however, be seen to diminish the value and wisdom of consulting Indigenous peoples prior to enacting legislation that hasthe potential to adversely impact the exercise of Aboriginal or treaty rights. Consultation during the legislative process is an importantconsideration in the justification analysis under s. 35.

But the absence or inadequacy of consultation may be considered only once thelegislation at issue has been enacted, and then, only in respect of a challenge under s. 35 to the substance or the effects of such enactedlegislation, as opposed to a challenge to the legislative process. Raising the possibility that legislation which adversely affects s. 35 rights might be declared inconsistent with the honour ofthe Crown undercuts the same principles of separation of powers and parliamentary privilege that lead to the conclusion that imposingthe duty to consult would be inappropriate in the circumstances of this case.

Further, this would cast the law into considerableuncertainty for all who rely upon the efficacy of validly enacted and constitutionally compliant laws. Per Moldaver, Côté and Rowe JJ.: There is agreement with Brown J. In addition, the fact that the duty to consult has notbeen recognized as a procedural requirement in the legislative process does not leave Aboriginal claimants without effective means tohave their rights, which are protected under s. 35 of the Constitution Act, 1982, vindicated by the courts.

When legislation has beenadopted, those who assert that the effect of the legislation is to infringe s. 35 rights have their remedies under the infringement andjustification framework set out in R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075. Those who assert that governmentdecisions made pursuant to the legislation’s authority will adversely affect their claims can rely on the duty to consult first recognized inHaida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] S.C.R. 511.

Where new situations arise that require theadaptation or extension of the existing jurisprudence, the courts provide a means for further development of the law. No suchrequirement has been shown on the facts of this case. The current jurisprudence provides for protection and vindication of Aboriginalrights while upholding the constitutional principles of parliamentary sovereignty and the separation of powers. Furthermore, recognizing a constitutionally mandated duty to consult during the process of preparing legislation would behighly disruptive to the carrying out of that work.

The preparation of legislation is not a simple process. Rather, it is a highly complexprocess involving multiple actors across government. Imposing a duty to consult at this stage could effectively grind the day-to-dayinternal operation of government to a halt. What is now complex and difficult could become drawn out and dysfunctional.

Finally, an additional and serious consequence of recognizing a duty to consult during the law-making process would be theinterventionist role that the courts would be called upon to play in order to supervise interactions between Indigenous parties and thosepreparing legislation for consideration by Parliament and by provincial legislatures. If a duty to consult were to be imposed on thelegislative process, disputes would arise about the way that this obligation would be fulfilled.

Affected parties would inevitably turn tothe courts, who would be drawn into a supervisory role as to the operation of a duty to consult in the preparation of legislation. Thecourts are ill-equipped to deal with the procedural complexities of the legislative process. If a legislature chooses to participate inconsultation with Indigenous peoples, the stage at which such consultation takes place is a matter of discretion. Interference by a court inthe exercise of that discretion would offend the separation of powers.

Engaging the courts in regulating the exercise by Parliament andlegislatures of their powers and privileges would be a profound change in Canada’s system of government. Cases Cited

By Karakatsanis J. Referred to: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Windsor (City) v.Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617; Fédération Franco-ténoise v. Canada, 2001 FCA 220, [2001] 3 F.C. 641;Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713; Shade v. Canada (Attorney General), 2003 FCT 327, 230F.T.R. 53; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Taku River Tlingit FirstNation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; R. v.

Badger, (SCC),[1996] 1 S.C.R. 771; R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075; R. v. Van der Peet, (SCC), [1996]2 S.C.R. 507; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Rio Tinto Alcan Inc. v. CarrierSekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005SCC 69, [2005] 3 S.C.R. 388; Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069; R. v.

Marshall, (SCC), [1999] 3 S.C.R. 456; Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525;Reference re Resolution to amend the Constitution, (SCC), [1981] 1 S.C.R. 753; Wells v. Newfoundland, (SCC), [1999] 3 S.C.R. 199; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Canada (Houseof Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R.217; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R.319; Williams Lake Indian Band v.

Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83; Mitchellv. Peguis Indian Band, (SCC), [1990] 2 S.C.R. 85; Ross River Dena Council v. Yukon, 2012 YKCA 14, 358 D.L.R.(4th) 100; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44,[2014] 2 S.C.R. 257; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010; Doré v. Barreau du Québec,2012 SCC 12, [2012] 1 S.C.R. 395; R. v. Mercure, (SCC), [1988] 1 S.C.R. 234. By Abella J. Considered: Haida Nation v.

British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Manitoba MetisFederation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; R. v. Sparrow, (SCC), [1990] 1S.C.R. 1075; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Taku RiverTlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Delgamuukw v. BritishColumbia, (SCC), [1997] 3 S.C.R. 1010; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2S.C.R. 650; Clyde River (Hamlet) v.

Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069; Chippewas of the Thames FirstNation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 S.C.R. 1099; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2S.C.R. 257; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1S.C.R. 319; Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40; British Columbia Teachers’ Federation v.British Columbia, 2016 SCC 49, [2016] 2 S.C.R. 407, rev’g (2015), 2015 BCCA 184 , 71 B.C.L.R. (5th) 223; referred to:Beckman v.

Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Badger, (SCC), [1996] 1S.C.R. 771; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; Calder v. Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313; R. v. Marshall, (SCC), [1999] 3 S.C.R. 456; R. v. Nikal, (SCC), [1996] 1S.C.R. 1013; R. v. Gladstone, (SCC), [1996] 2 S.C.R. 723; Ontario v. Criminal Lawyers’ Association of Ontario, 2013SCC 43, [2013] 3 S.C.R. 3; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; St. Catherine’s Milling andLumber Co. v. The Queen (1888), 14 App.

Cas. 46; Reference re Resolution to Amend the Constitution, (SCC), [1981] 1S.C.R. 753; Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525; Reference re Secession ofQuebec, (SCC), [1998] 2 S.C.R. 217; Health Services and Support — Facilities Subsector Bargaining Assn. v. BritishColumbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245;Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; Gallant v. The King, (PESCTD), [1949] 2 D.L.R. 425; Canada (Prime Minister) v.

Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Mohawks of the Bay of Quinte v.Canada (Minister of Indian Affairs and Northern Development), 2013 FC 669, 434 F.T.R. 241. By Brown J. Considered: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; referred to:Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; ITO — International Terminal Operators Ltd. v. MiidaElectronics Inc., (SCC), [1986] 1 S.C.R. 752; Anisman v. Canada Border Services Agency, 2010 FCA 52, 400 N.R. 137;Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605; Babcock v.

Canada (Attorney General), 2002 SCC 57,[2002] 3 S.C.R. 3; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Wells v. Newfoundland, (SCC), [1999] 3 S.C.R. 199; Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525;Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Galati v. Canada (Governor General), 2015 FC 91, [2015] 4F.C.R. 3; Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; Authorson v. Canada (AttorneyGeneral), 2003 SCC 39, [2003] 2 S.C.R. 40; Health Services and Support — Facilities Subsector Bargaining Assn. v.

British Columbia,2007 SCC 27, [2007] 2 S.C.R. 391; R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075; Tsilhqot’in Nation v. BritishColumbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Case of Proclamations (1611), 12 Co. Rep. 74, 77 E.R. 1352; Reference re Secession ofQuebec, (SCC), [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince EdwardIsland, (SCC), [1997] 3 S.C.R. 3; Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R.1069; Fédération Franco-ténoise v. Canada, 2001 FCA 220, [2001] 3 F.C. 641; Manitoba Metis Federation Inc. v.

Canada (AttorneyGeneral), 2013 SCC 14, [2013] 1 S.C.R. 623. By Rowe J. Considered: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Rio Tinto AlcanInc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; referred to: R. v. Sparrow, (SCC), [1990] 1S.C.R. 1075; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Lax Kw’alaams Indian Band v. Canada(Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2S.C.R. 585; Mitchell v.

M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Marshall, (SCC), [1999] 3 S.C.R. 456;Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010; Ktunaxa Nation v. British Columbia (Forests, Lands

and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R.227; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Taku River Tlingit First Nation v. BritishColumbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Manitoba Metis Federation Inc. v. Canada (AttorneyGeneral), 2013 SCC 14, [2013] 1 S.C.R. 623; R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507; R. v. Sappier, 2006 SCC54, [2006] 2 S.C.R. 686; R. v. Badger, (SCC), [1996] 1 S.C.R. 771; Authorson v.

Canada (Attorney General), 2003SCC 39, [2003] 2 S.C.R. 40; Attorney General of Canada v. Inuit Tapirisat of Canada, (SCC), [1980] 2 S.C.R. 735;Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525; Wells v. Newfoundland, (SCC), [1999] 3 S.C.R. 199. Statutes and Regulations Cited Act of Settlement (Eng.), 12 & 13 Will. 3, c. 2. Bill of Rights (Eng.), 1 Will. & Mar., Sess. 2, c. 2, art. 9. Canadian Bill of Rights, R.S.C. 1985, App. III. Canadian Charter of Rights and Freedoms. Canadian Environmental Assessment Act, S.C. 1992, c. 37.

Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52. Constitution Act, 1867,

preamble,

Part IV, ss. 17, 48, 49, 54, 55. Constitution Act, 1982, ss. 35, 52. Department of Fisheries and Oceans Act, R.S.C. 1985, c. F-15. Department of Indian Affairs and Northern Development Act, R.S.C. 1985, c. I-6. Department of Natural Resources Act, S.C. 1994, c. 41. Department of the Environment Act, R.S.C. 1985, c. E-10. Department of Transport Act, R.S.C. 1985, c. T-18. Federal Courts Act, R.S.C. 1985, c. F-7, ss. 2(1) “Crown”, “federal board, commission or other tribunal”, 2(2) 17, 18, 18.1, 28. Federal Courts Rules, SOR/98-106, r. 57. Financial Administration Act, R.S.C. 1985, c. F-11.

Fisheries Act, R.S.C. 1985, c. F-14. Indian Act, R.S.C. 1985, c. I-5. Jobs and Growth Act, 2012, S.C. 2012, c. 31. Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19. Magna Carta (1215). Navigation Protection Act [previously the Navigable Waters Protection Act], R.S.C. 1985, c. N-22. Nisga’a Final Agreement Act, S.B.C. 1999, c. 2. Nisga’a Final Agreement Act, S.C. 2000, c. 7. Royal Proclamation (1763) (reprinted in R.S.C. 1985, App. II, No. 1). Species at Risk Act, S.C. 2002, c. 29. Treaties and Agreements Nisga’a Final Agreement (1999), c. 11, paras. 30, 31. Treaty No. 8 (1899).

Authors Cited Bankes, Nigel. “The Duty to Consult and the Legislative Process: But What About Reconciliation?” (2016) (online:https://ablawg.ca/2016/12/21/the-duty-to-consult-and-the-legislative-process-but-what-about-reconciliation/; archived version:https://www.scc-csc.ca/cso-dce/2018SCC-CSC40_1_eng.pdf). Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada.

Toronto: Thomson Reuters, 2013 (loose-leaf updated April 2018, release 1). Canada. Privy Council. Guide to Making Federal Acts and Regulations. 2nd ed. Ottawa: Privy Council/Dept. of Justice Canada, 2001. Davis, Zachary. “The Duty to Consult and Legislative Action” (2016), 79 Sask. L. Rev. 17. Dickson, Jamie D. The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada . Saskatoon: Purich Publishing, 2015. Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2017, release 1). Maingot, J. P. Joseph. Parliamentary Immunity in Canada .

Toronto: LexisNexis, 2016. Manitoba. “Interim Provincial Policy For Crown Consultations with First Nations, Métis Communities and Other Aboriginal Communities” (May 4, 2009) (online: https://www.gov.mb.ca/inr/resources/pubs/interim%20prov%20policy%20for%20crown%20consultation%20-%202009.pdf; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC40_2_eng.pdf ). McCabe, J. Timothy S. The Honour of the Crown and its Fiduciary Duties to Aboriginal Peoples . Markham, Ont.: LexisNexis, 2008. Newman, Dwight G. Revisiting the Duty to Consult Aboriginal Peoples . Saskatoon: Purich Publishing, 2014. O.

Hood Phillips, Paul Jackson and Patricia Leopold. O. Hood Phillips & Jackson: Constitutional and Administrative Law , 8th ed. London: Sweet & Maxwell, 2001. Quebec. Interministerial Support Group on Aboriginal Consultation. Interim Guide for Consulting the Aboriginal Communities , Québec, 2008. Roach, Kent. Constitutional Remedies in Canada , 2nd ed. Toronto: Canada Law Book, 2013 (loose-leaf updated November 2017, release 30). Robert, Charles. “The Role of the Crown-in-Parliament: A Matter of Form and Substance”, in Michel Bédard and Philippe Lagassé, eds., The Crown and Parliament .

Montréal: Yvon Blais, 2015, 95. Saskatchewan. “First Nation and Métis Consultation Policy Framework” (June 2010) (online: http://publications.gov.sk.ca/documents/313/98187-Consultation%20-Policy20-Framework.pdf ; archived version: https://www.scc- csc.ca/cso-dce/2018SCC-CSC40_3_eng.pdf ). Slattery, Brian. “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433 . Walters, Mark D. “The Morality of Aboriginal Law” (2006), 31 Queen’s L.J. 470.

APPEAL from a judgment of the Federal Court of Appeal (Pelletier, Webb and de Montigny JJ.A.), 2016 FCA 311 , [2017] 3 F.C.R. 298, 405 D.L.R. (4th) 721, 5 C.E.L.R. (4th) 302, [2017] 1 C.N.L.R. 354, [2016] F.C.J. No. 1389 (QL), 2016 CarswellNat 6599 (WL Can.), setting aside a declaration of Hughes J., 2014 FC 1244 , 470 F.T.R. 243, 93 C.E.L.R. (3d) 199, [2015] 1 C.N.L.R. 243, [2014] F.C.J. No. 1308 (QL), 2014 CarswellNat 5539 (WL Can.). Appeal dismissed. Robert J. M. Janes , Q.C. , Karey Brooks and Estella White , for the appellant. Christopher M. Rupar and Cynthia Dickins , for the respondents.

Samuel Chayer , for the intervener the Attorney General of Quebec. William Gould and Rachelle Standing , for the intervener the Attorney General of New Brunswick. Glen R. Thompson and Heather Cochran , for the intervener the Attorney General of British Columbia. Richard James Fyfe , for the intervener the Attorney General of Saskatchewan. Krista Epton , for the intervener the Attorney General of Alberta. Gregory J.

McDade , Q.C. , and Kate Blomfield , for the interveners the Champagne and Aishihik First Nations, the Kwanlin Dün First Nation, the Little Salmon Carmacks First Nation, the First Nation of Na-Cho Nyak Dun, the Teslin Tlingit Council and the First Nations of the Maa-nulth Treaty Society. Julie McGregor and Stuart Wuttke , for the intervener the Assembly of First Nations. John Hurley and François Dandonneau , for the interveners the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government. Jason T.

Madden , Alexandria Winterburn and Megan Strachan , for the intervener the Manitoba Metis Federation Inc. Brandon Kain , Bryn Gray and Asher Honickman , for the intervener the Advocates for the Rule of Law. Victor Carter , Allison Lachance and Darryl Korell , for the intervener the Federation of Sovereign Indigenous Nations.

Karenna Williams and Jeff Huberman , for the intervener the Gitanyow Hereditary Chiefs. The judgment of Wagner C.J. and Karakatsanis and Gascon JJ. was delivered by Karakatsanis J. — I. Overview [ 1 ] Since this Court’s landmark decision in Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511, the duty to consult has played a critical role in ensuring that Aboriginal and treaty rights receive meaningful protection.

Grounded in the honour of the Crown, this duty requires the Crown to consult (and if appropriate, accommodate) Aboriginal peoples before taking action that may adversely affect their asserted or established rights under s. 35 of the Constitution Act, 1982 . The appellant Mikisew Cree First Nation argues that the Crown had a duty to consult them on the development of environmental legislation that had the potential to adversely affect their treaty rights to hunt, trap, and fish.

This Court must therefore answer a vexing question it has left open in the past: Does the duty to consult apply to the law-making process? [ 2 ] I conclude that it does not. Two constitutional principles — the separation of powers and parliamentary sovereignty — dictate that it is rarely appropriate for courts to scrutinize the law-making process. The process of law-making does not only take place in Parliament. Rather, it begins with the development of legislation. When ministers develop legislation, they act in a parliamentary capacity. As such, courts should exercise restraint when dealing with this process.

Extending the duty to consult doctrine to the legislative process would oblige the judiciary to step beyond the core of its institutional role and threaten the respectful balance between the three pillars of our democracy. It would also transpose a consultation framework and judicial remedies developed in the context of executive action into the distinct realm of the legislature.

Thus, the duty to consult doctrine is ill-suited to the law-making process; the law-making process does not constitute “Crown conduct” that triggers the duty to consult. [ 3 ] This is not to suggest, however, that when the legislation undermines s. 35 rights, Aboriginal groups would be left without a remedy. Clearly, if legislation infringes s. 35 , it may be declared invalid pursuant to s. 52(1) of the Constitution Act , 1982 . Further, the Crown’s honour may well require judicial intervention where legislation may adversely affect — but does not necessarily infringe — Aboriginal or treaty rights.

However, the resolution of such questions must be left to another day. In this appeal, the issue was framed in terms of whether the duty to consult doctrine should apply to the law-making process. I find that it should not. II. Background [ 4 ] The Mikisew are a band within the meaning of the Indian Act , R.S.C. 1985, c. I-5, whose traditional territory is situated primarily in northeastern Alberta. This is a region of immense beauty; it includes, for example, the lands and waters around Lake Athabasca, as well as the Peace-Athabasca Delta.

This region is also home to significant existing and proposed oil sands development. [ 5 ] The Mikisew are descendants of an Aboriginal group that, along with a number of other First Nations, adhered to Treaty No. 8 with Her Majesty in 1899. Under Treaty No. 8, First Nations ceded a large amount of land — much of what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan, and the southern portion of the Northwest Territories — to the Crown in exchange for certain guarantees.

Among these guarantees was a provision protecting the right of the signatories to hunt, trap, and fish: And Her Majesty the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. [ 6 ] The Mikisew ’s claim relates to two pieces of omnibus legislation that had significant effects on Canada’s environmental protection regime.

In April 2012, the federal Minister of Finance introduced Bill C-38 (enacted as the Jobs, Growth and Long-term Prosperity Act , S.C. 2012, c. 19), which received royal assent in June 2012. Later that year, the Minister introduced Bill C-45 (enacted as the Jobs and Growth Act , 2012 , S.C. 2012, c. 31), which received royal assent in December 2012. [ 7 ] These bills were broad in scope. Together, they resulted in the repeal of the Canadian Environmental Assessment Act , S.C. 1992, c. 37, and the enactment of the Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52.

They also resulted in significant amendments to the protection regime under the Fisheries Act , R.S.C. 1985, c. F-14, as well as amendments to the Species at Risk Act , S.C. 2002, c. 29, and the Navigable Waters Protection Act , which was renamed the Navigation Protection Act , R.S.C. 1985, c. N-22. [ 8 ] The Mikisew were not consulted on either of these omnibus bills at any stage in their development or prior to the granting of royal assent. [ 9 ] The Mikisew brought an application for judicial review under ss. 18 and 18.1 of the Federal Courts Act , R.S.C. 1985, c.

F-7, seeking various declarations and orders concerning the respondent Ministers’ duty to consult them with respect to the introduction and development of the omnibus bills. [ 10 ] The reviewing judge, Hughes J., determined that the proceedings were not precluded by s. 2(2) of the Federal Courts Act and that they presented a justiciable issue ( 2014 FC 1244 , 470 F.T.R. 243 ) . He explained that judicial intervention in the law- making process is inconsistent with the separation of powers.

Therefore, if the development of policy by ministers triggers a duty to consult, the judiciary cannot enforce this duty before a bill is introduced into Parliament. The reviewing judge then turned to determining whether a duty to consult was triggered in this case. He assumed that the steps that Cabinet ministers take during the law-making process prior to introducing a bill into Parliament can constitute Crown conduct triggering the duty to consult. He found that the proposals contained in the omnibus bills may adversely affect the Mikisew’s treaty rights.

Therefore, he concluded that the duty to consult was triggered. The Mikisew were entitled to notice of the provisions of the omnibus bills that reasonably might have been expected to affect

their treaty rights, as well as an opportunity to make submissions. The Federal Court granted a declaration to this effect. [ 11 ] The Federal Court of Appeal allowed the appeal ( 2016 FCA 311 , [2017] 3 F.C.R. 298). The majority, de Montigny and Webb JJ.A., concluded that the reviewing judge erred by conducting a judicial review of legislative action contrary to the Federal Courts Act . In its view, when ministers develop policy, they act in a legislative capacity and their actions are immune from judicial review.

The majority also held that the reviewing judge’s decision was inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. These principles dictate that courts cannot supervise the legislative process. Further, imposing a duty to consult in the legislative process would be impractical and would fetter Parliament’s law-making capacity. [ 12 ] Concurring, Pelletier J.A. concluded that the Federal Courts Act did not preclude the Mikisew’s claim.

While the Federal Court may not have been validly seized of an application for judicial review, he determined that it nonetheless had jurisdiction over the matter under s. 17 of the Federal Courts Act , as the Mikisew sought relief against the Crown. Pelletier J.A. noted that it may be problematic to conclude that legislative action can never trigger the duty to consult. However, he concluded that the duty to consult is not triggered by legislation of general application that causes effects which are not limited to the specific rights at issue.

Since the omnibus legislation was of this nature, the duty to consult was not triggered. III. Analysis A. Jurisdiction [ 13 ] For the Federal Court to have jurisdiction over a claim, it must have a statutory grant of jurisdiction ( Windsor (City) v. Canadian Transit Co ., 2016 SCC 54 , [2016] 2 S.C.R. 617, at para. 34 ). [ 14 ] Two potential statutory grants of jurisdiction are live in this appeal: ss. 17 and 18 of the Federal Courts Act . I will address each in turn.

(1) Section 17 of the Federal Courts Act [ 15 ] The Mikisew did not advance s. 17 as a basis for jurisdiction at first instance or in their submissions before this Court. However, Pelletier J.A. at the Federal Court of Appeal held that s. 17 was a basis for jurisdiction in this case.

Further, while the Mikisew’s initial application was framed as a judicial review under s. 18 (not s. 17 ), the Federal Courts Rules , SOR/98-106, provide that “[a]n originating document shall not be set aside only on the ground that a different originating document should have been used” ( rule 57 ). [ 16 ] Section 17(1) of the Act provides that the “Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown”. Further, s. 2(1) of the Act defines the “Crown” as “Her Majesty in right of Canada”.

However, I agree that Her Majesty in right of Canada does not extend to executive actors when they are exercising “legislative power” ( Fédération Franco-ténoise v. Canada , 2001 FCA 220 , [2001] 3 F.C. 641, at para. 58 ). Here, as I will explain, the Mikisew challenge actions which are uniformly legislative in character. It follows that their application is not against “the Crown” in its executive capacity. Thus, the Federal Court lacked s. 17 jurisdiction over the Mikisew’s claim.

(2) Section 18 of the Federal Courts Act [ 17 ] The Mikisew brought this case as an application for judicial review of the development of the omnibus legislation by the respondent Ministers under ss. 18 and 18.1 of the Federal Courts Act . I agree with the conclusions and reasons of the majority of the Federal Court of Appeal that the Federal Court was not validly seized of an application for judicial review in this case. [ 18 ] The Federal Courts Act does not allow for judicial review of parliamentary activities.

Indeed, ss. 18 and 18.1 only grant the Federal Court jurisdiction to judicially review action taken by “any federal board, commission or other tribunal”. A “federal board, commission or other tribunal” is defined in the Act, subject to certain exceptions, as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown (s. 2; see also Strickland v. Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713, at para. 64 ).

Section 2(2) specifies that “ federal board, commission or other tribunal ” does not include “the Senate, the House of Commons, any committee or member of either House”. Thus, I agree that s. 2(2) is designed “to preclude judicial review of the legislative process at large” (C.A. reasons, at para. 32). As I will explain further below, Cabinet and ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under

Part IV of the Constitution Act, 1867 . As such, when developing legislation, they do not act as a “federal board, commission or other tribunal” within the meaning of s. 2 (see Shade v. Canada (Attorney General) , 2003 FCT 327 , 230 F.T.R. 53, at para. 34 ). [ 19 ] Nonetheless, the parties have made extensive submissions on the substantive issues in this appeal. In these circumstances, it is important for this Court to determine whether the duty to consult applies to the law-making process. B.

The Honour of the Crown and the Duty to Consult [ 20 ] The duty to consult is grounded in the honour of the Crown ( Haida Nation , at para. 16 ). Thus, I turn first to the principles that underlie the honour of the Crown and its relationship with the duty to consult. [ 21 ] The honour of the Crown is a foundational principle of Aboriginal law and governs the relationship between the Crown and Aboriginal peoples.

It arises from “the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people” and goes back to the Royal Proclamation of 1763 ( Haida Nation , at para. 32 ; Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14 , [2013] 1 S.C.R. 623, at para. 66 ).

It recognizes that the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples creates a special relationship that requires that the Crown act honourably in its dealings with Aboriginal peoples ( Manitoba Metis , at para. 67; B. Slattery, “Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433, at p. 436) .

[22] The underlying purpose of the honour of the Crown is to facilitate the reconciliation of these interests (ManitobaMetis, at paras. 66-67). One way that it does so is by promoting negotiation and the just settlement of Aboriginal claims as an alternativeto litigation and judicially imposed outcomes (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004SCC 74, [2004] 3 S.C.R. 550, at para. 24). This endeavour of reconciliation is a first principle of Aboriginal law. [23] The honour of the Crown is always at stake in its dealings with Aboriginal peoples (R. v.

Badger, (SCC), [1996] 1 S.C.R. 771, at para. 41; Manitoba Metis, at paras. 68-72). As it emerges from the Crown’s assertion of sovereignty, itbinds the Crown qua sovereign. Indeed, it has been found to apply when the Crown acts either through legislation or executive conduct(see R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, at pp. 1110 and 1114; R. v.

Van der Peet, (SCC),[1996] 2 S.C.R. 507, at para. 231, per McLachlin J., as she then was, dissenting; Haida Nation; Manitoba Metis, at para. 69). [24] As this Court stated in Haida Nation, the honour of the Crown “is not a mere incantation, but rather a core preceptthat finds its application in concrete practices” and “gives rise to different duties in different circumstances” (paras. 16 and 18). Whenengaged, it imposes “a heavy obligation” on the Crown (Manitoba Metis, at para. 68).

Indeed, because of the close relationship betweenthe honour of the Crown and s. 35, the honour of the Crown has been described as a “constitutional principle” (Beckman v. LittleSalmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42). That said, this Court has made clear that the duties thatflow from the honour of the Crown will vary with the situations in which it is engaged (Manitoba Metis, at para. 74).

Determining whatconstitutes honourable dealing, and what specific obligations are imposed by the honour of the Crown, depends heavily on thecircumstances (Haida Nation, at para. 38; Taku River, at para. 25; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43,[2010] 2 S.C.R. 650, at paras. 36-37). [25] The duty to consult is one such obligation. In instances where the Crown contemplates executive action that mayadversely affect s. 35 rights, the honour of the Crown has been found to give rise to a justiciable duty to consult (see e.g. Haida Nation,Taku River, Mikisew Cree First Nation v.

Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, and LittleSalmon). This obligation has also been applied in the context of statutory decision-makers that — while not part of the executive — acton behalf of the Crown (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 29).

Thesecases demonstrate that, in certain circumstances, Crown conduct may not constitute an “infringement” of established s. 35 rights;however, acting unilaterally in a way that may adversely affect such rights does not reflect well on the honour of the Crown and maythus warrant intervention on judicial review. [26] The duty to consult jurisprudence makes clear that the duty to consult is best understood as a “valuable adjunct” tothe honour of the Crown (Little Salmon, at para. 44).

The duty to consult ensures that the Crown acts honourably by preventing it fromacting unilaterally in ways that undermine s. 35 rights. This promotes reconciliation between the Crown and Aboriginal peoples first, byproviding procedural protections to s. 35 rights, and second, by encouraging negotiation and just settlements as an alternative to the cost,delay and acrimony of litigating s. 35 infringement claims (Clyde River, at para. 1; Haida Nation, at paras. 14 and 32; Mikisew Cree, atpara. 63). [27] The duty to consult has been recognized in a variety of contexts.

For example, in Haida Nation, this Court recognizeda duty to consult when the Crown contemplated the replacement and transfer of tree farm licences that had the potential to affect assertedbut unproven Aboriginal rights. In Mikisew Cree, the Court recognized that the contemplation of “taking up” lands under Treaty No. 8could adversely affect the Mikisew’s rights under the treaty and thus required consultation. Crown conduct need not have an immediateimpact on lands and resources to trigger the duty to consult.

This Court has recognized that “high-level management decisions orstructural changes to [a] resource’s management” may also trigger a consultative duty (Carrier Sekani, at para. 47; see also para. 44).However, to date, the duty to consult has only been applied to executive conduct and conduct taken on behalf of the executive. [28] The Mikisew’s treaty rights are protected under s. 35 of the Constitution Act, 1982, and the Crown’s dealings withthose rights engage the honour of the Crown.

Here, the Mikisew argue that their hunting, trapping, and fishing rights under Treaty No. 8may be adversely affected by the Crown’s conduct. This Court has repeatedly found that the honour of the Crown governs treaty makingand implementation, and requires the Crown to act in a way that accomplishes the intended purposes of treaties and solemn promises itmakes to Aboriginal peoples (Manitoba Metis, at paras. 73 and 75; Mikisew Cree, at para. 51; R. v. Marshall, (SCC),[1999] 3 S.C.R. 456, at para. 44; Badger, at paras. 41 and 47).

Treaty agreements are sacred; it is always assumed that the Crown intendsto fulfill its promises. No appearance of “sharp dealing” will be permitted (Badger, at para. 41). [29] However, the question in this appeal is whether the honour of the Crown gives rise to a justiciable duty to consultwhen ministers develop legislation that could adversely affect the Mikisew’s treaty rights. When confronted with a novel case like this,the Court must determine whether the duty to consult is the appropriate means to uphold the honour of the Crown.

This Court hasexplicitly left open the question of whether the law-making process is “Crown conduct” that triggers the duty to consult (Carrier Sekani,at para. 44; Clyde River, at para. 28). I turn to analyzing this issue now. C. The Duty to Consult During the Law-Making Process [30] The Mikisew submit that the development of policy by ministers leading to the formulation and introduction of a billthat may affect s. 35 rights triggers the duty to consult. In their view, ministers act in an executive capacity, not a parliamentary capacity,when developing legislation.

Thus, concluding that legislative development triggers the duty to consult does not offend the separation ofpowers or parliamentary privilege. Further, concluding otherwise would leave some claimants whose s. 35 rights are affected bylegislation without an effective remedy. Indeed, legislation may abolish Crown oversight of or involvement in resource development andthereby remove Crown conduct that would trigger the duty to consult.

Additionally, requiring claimants to proceed by way of a s. 35infringement claim to vindicate their rights places an onerous burden on them. [31] The respondents submit that the development of legislation by ministers is legislative action that does not trigger theduty to consult, as this would be inconsistent with parliamentary sovereignty and the separation of powers. These principles dictate thatcourts cannot supervise the law-making process. The respondents ground their argument on the premise that ministers act in aparliamentary capacity, not an executive capacity, when developing legislation.

Furthermore, they suggest that, while the duty to consult

is not triggered by legislative action, this does not leave claimants without an effective remedy. Once legislation has passed, it can bechallenged under the Sparrow framework if it infringes s. 35 rights. Additionally, decisions made under the new or amended legislationmay trigger the duty to consult. [32] For the reasons that follow, I conclude that the law-making process — that is, the development, passage, andenactment of legislation — does not trigger the duty to consult. The separation of powers and parliamentary sovereignty dictate thatcourts should forebear from intervening in the law-making process.

Therefore, the duty to consult doctrine is ill-suited for legislativeaction. [33] The Mikisew ask us to recognize that the duty to consult applies to ministers in the development of legislation. Thereis no doubt overlap between executive and legislative functions in Canada; Cabinet, for instance, is “a combining committee — a hyphenwhich joins, a buckle which fastens, the legislative part of the state to the executive part of the state” (Reference re Canada AssistancePlan (B.C.), (SCC), [1991] 2 S.C.R. 525, at p. 559, quoting W. Bagehot, The English Constitution (1872), at p. 14(emphasis in original)).

I do not accept, however, the Mikisew’s submission that ministers act in an executive capacity when theydevelop legislation. The legislative development at issue was not conducted pursuant to any statutory authority; rather, it was an exerciseof legislative powers derived from

Part IV of the Constitution Act, 1867. As the majority of the Court of Appeal noted, the departmentalstatutes relied on by the Mikisew to show that the Ministers acted in an executive capacity when developing legislation do not “refereven implicitly to . . . the development of legislation for introduction into Parliament” (C.A. reasons, at para. 28; Department of IndianAffairs and Northern Development Act, R.S.C. 1985, c. I-6; Department of the Environment Act, R.S.C. 1985, c. E-10; Department ofFisheries and Oceans Act, R.S.C. 1985, c. F-15; Department of Transport Act, R.S.C. 1985, c.

T-18; Department of Natural ResourcesAct, S.C. 1994, c. 41; Financial Administration Act, R.S.C. 1985, c. F-11). [34] The development of legislation by ministers is part of the law-making process, and this process is generallyprotected from judicial oversight. Further, this Court’s jurisprudence makes clear that, if Cabinet is restrained from introducinglegislation, then this effectively restrains Parliament (Canada Assistance Plan, at p. 560). This Court has emphasized the importance ofsafeguarding the law-making process from judicial supervision on numerous occasions.

In Reference re Resolution to amend theConstitution, (SCC), [1981] 1 S.C.R. 753, a majority of the Court stated that “[c]ourts come into the picture whenlegislation is enacted and not before” (p. 785). In Canada Assistance Plan, the Court underscored that “[t]he formulation andintroduction of a bill are part of the legislative process with which the courts will not meddle” (p. 559). [35] Longstanding constitutional principles underlie this reluctance to supervise the law-making process. The separationof powers is “an essential feature of our constitution” (Wells v.

Newfoundland, (SCC), [1999] 3 S.C.R. 199, at para. 52;see also Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 27). It recognizes that eachbranch of government “will be unable to fulfill its role if it is unduly interfered with by the others” (Criminal Lawyers’ Association, atpara. 29).

It dictates that “the courts and Parliament strive to respect each other’s role in the conduct of public affairs”; as such, there isno doubt that Parliament’s legislative activities should “proceed unimpeded by any external body or institution, including the courts”(Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 20).

Recognizing that a duty to consult applies duringthe law-making process may require courts to improperly trespass onto the legislature’s domain. [36] Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confinesof its constitutional authority.

While the adoption of the Canadian Charter of Rights and Freedoms transformed the Canadian system ofgovernment “to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy” (Reference reSecession of Quebec, (SCC), [1998] 2 S.C.R. 217, at para. 72), democracy remains one of the unwritten principles ofthe Constitution (Secession Reference, at paras. 61-69).

Recognizing that the elected legislature has specific consultation obligations mayconstrain it in pursuing its mandate and therefore undermine its ability to act as the voice of the electorate. [37] Parliamentary privilege, a related constitutional principle, also demonstrates that the law-making process is largelybeyond the reach of judicial interference. It is defined as “the sum of the privileges, immunities and powers enjoyed by the Senate, theHouse of Commons and provincial legislative assemblies, and by each member individually, without which they could not dischargetheir functions” (Vaid, at para. 29(2)).

Once a category of parliamentary privilege is established, “it is for Parliament, not the courts, todetermine whether in a particular case the exercise of the privilege is necessary or appropriate” (Vaid, at para. 29(9) and paras. 47-48(emphasis in original)). Canadian jurisprudence makes clear that parliamentary privilege protects control over “debates or proceedings inParliament” (Vaid, at para. 29(10); J. P. J. Maingot, Parliamentary Immunity in Canada (2016), at pp. 166-71; see also New BrunswickBroadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319, at p. 385; P.

W.Hogg, Constitutional Law of Canada (5th ed. Supp.), at s. 1.7;

Article 9 of the U.K. Bill of Rights of 1689). The existence of thisprivilege generally prevents courts from enforcing procedural constraints on the parliamentary process. [38] Applying the duty to consult doctrine during the law-making process would lead to significant judicial incursion intothe workings of the legislature, even if such a duty were only enforced post-enactment. The duty to consult jurisprudence has developeda spectrum of consultation requirements that fit in the context of administrative decision-making processes.

Directly transposing suchexecutive requirements into the legislative context would be an inappropriate constraint on legislatures’ ability to control their ownprocesses. [39] The administrative law remedies normally available for breach of a duty to consult would further invite inappropriatejudicial intervention into the legislature’s domain.

The Crown’s failure to consult can lead to a number of remedies, including quashingthe decision at issue or granting injunctive relief, damages, or an order to carry out consultation prior to proceeding further with theproposed action (Carrier Sekani, at paras. 37 and 54; Clyde River, at para. 24; K. Roach, Constitutional Remedies in Canada (2nd ed.(loose-leaf)), at ¶15.820 to 15.980). Thus, if a duty to consult applied to the law-making process, it would require the judiciary to directlyinterfere with the development of legislation. I recognize that the Mikisew only sought declaratory relief in this case.

However, theirrationale for seeking declaratory relief was that Canada was considering changing its environmental protection framework at the time ofthis litigation. The Mikisew acknowledged that it may be appropriate, in future litigation, for courts to consider granting ancillary reliefrequiring further consultation on the challenged legislation, a stay of further implementation of the challenged legislation, or judicialsupervision. Such remedies could significantly fetter the will of Parliament.

[40] Applying a duty to consult to the development of legislation by ministers, as the Mikisew propose, also raisespractical concerns. If the duty to consult is triggered by the development of legislation by ministers, but not later in the law-makingprocess, this may limit the possibility of meaningful accommodation. Changes made to the proposed bill at the policy development stageto address concerns raised during consultation may be undone by Parliament, as it is free to amend the proposed law. Additionally, theintroduction of private member bills would not trigger the duty, rendering the approach incongruous.

The Mikisew’s proposed approachcould also be difficult to apply where ministers pursue both executive conduct and parliamentary conduct in the Cabinet decision-making process.

In the long chain of events contributing to the development of legislation, disentangling what steps the duty to consultapplies to (because they are executive) and what actions are immune (because they are parliamentary) would be an enormously difficulttask. [41] For these reasons, the duty to consult doctrine is ill-suited to be applied directly to the law-making process. [42] That said, parliamentary sovereignty and the separation of powers are not the only constitutional principles relevantto this appeal.

The duty to consult was recognized to help protect the constitutional rights enshrined in s. 35 and uphold the honour of theCrown — itself a constitutional principle (Little Salmon, at para. 42). [43] The Mikisew argue that if the duty to consult does not apply to the legislative process, Aboriginal or treaty rightswill be subject to inconsistent protection. When the executive or a statutory decision-maker takes action that may affect asserted orestablished s. 35 rights, the honour of the Crown imposes a duty to consult.

As noted above, this prevents the Crown from actingunilaterally in a way that could erode s. 35 rights and promotes the ongoing process of reconciliation. In contrast, if the state takes thesame action through legislative means, the Aboriginal communities whose rights are potentially affected may be left without effectiverecourse. If such legislation infringes s. 35 rights, it may be declared of no force and effect pursuant to s. 52 of the Constitution Act, 1982(see Sparrow).

However, if the effects of the legislation do not rise to the level of infringement, or if the rights are merely asserted (andnot established), an Aboriginal group will not be able to successfully challenge the constitutional validity of the legislation through aSparrow claim. Further, there may be situations where legislation effectively removes future consultation obligations by removingCrown decision-making that would otherwise have triggered the duty to consult. [44] I accept that these are valid concerns.

It is of little import to Aboriginal peoples whether it is the executive orParliament which acts in a way that may adversely affect their rights. The relationship of Aboriginal peoples “with the Crown orsovereign has never depended on the particular representatives of the Crown involved” (Williams Lake Indian Band v. Canada(Aboriginal Affairs and Northern Development), 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 130, quoting Mitchell v. Peguis Indian Band, (SCC), [1990] 2 S.C.R. 85, at p. 109, per Dickson C.J.). As noted above, the honour of the Crown binds the Crown quasovereign.

Indeed, permitting the Crown to do by one means that which it cannot do by another would undermine the endeavour ofreconciliation, which animates Aboriginal law. The principle of reconciliation and not rigid formalism should drive the development ofAboriginal law. [45] Given these concerns, it is worth noting that the duty to consult is not the only means to give effect to the honour ofthe Crown when Aboriginal or treaty rights may be adversely affected by legislation.

Other doctrines may be developed to ensure theconsistent protection of s. 35 rights and to give full effect to the honour of the Crown through review of enacted legislation. [46] For example, it may not be consistent with s. 35 to legislate in a way that effectively removes future Crown conductwhich would otherwise trigger the duty to consult. I note that, in Ross River Dena Council v.

Yukon, 2012 YKCA 14, 358 D.L.R. (4th)100, the Yukon Court of Appeal held that “[s]tatutory regimes that do not allow for consultation and fail to provide any other equallyeffective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist” (para. 37; see alsoConstitution Act, 1982, s. 52(1)). [47] Other forms of recourse may also be available. For example, declaratory relief may be appropriate in a case wherelegislation is enacted that is not consistent with the Crown’s duty of honourable dealing toward Aboriginal peoples (see Manitoba Metis,at paras. 69 and 143).

A declaration is available without a cause of action (ibid, at para. 143). Further, as this Court has previously held,declaratory relief may be an appropriate remedy even in situations where other forms of relief would be inconsistent with the separationof powers (see Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 2). [48] To be clear, legislation cannot be challenged on the basis that the legislature failed to fulfill the duty to consult. Theduty to consult doctrine does not apply to the legislature.

However, if other forms of recourse are available, the extent of any consultationmay well be a relevant consideration, as it was in Sparrow, when assessing whether the enactment is consistent with constitutionalprinciples. In Sparrow, this Court held that, when there has been a prima facie infringement of a s. 35 right, the “first consideration” indetermining whether the legislation or action can be justified is the honour of the Crown (p. 1114).

And an important part of that inquiryis whether the Aboriginal group in question was consulted on the impugned measure (Sparrow, at p. 1119; see also Badger, at para. 97;Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at paras. 77, 80 and 125; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010, at para. 168). [49] However, the issue of whether other protections are, or should be, available is not squarely before the Court in thisappeal.

As discussed above, the Federal Court was not validly seized of the application in this case, so no relief can be granted.Moreover, the Mikisew framed their claim exclusively around whether the duty to consult doctrine should apply to the legislativeprocess. We have not received sufficient submissions on how to ensure that the honour of the Crown is upheld other than through thespecific mechanism of the duty to consult. A different context attracts different considerations.

I would note that there are importantdistinctions between judicial review of administrative action in the duty to consult context and judicial review of legislation (Doré v.Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 36). IV. Conclusion [50] For the reasons set out above, I conclude that no aspect of the law-making process — from the development oflegislation to its enactment — triggers a duty to consult. In the duty to consult context, “Crown conduct” has only been found to include

executive action or action taken on behalf of the executive. I would not expand the application of the duty to consult doctrine to thelegislative process. [51] Finally, my conclusions respecting the duty to consult do not apply to the process by which subordinate legislation(such as regulations or rules) is adopted, as such conduct is clearly executive rather than parliamentary (see N. Bankes, “The Duty toConsult and the Legislative Process: But What About Reconciliation?” (2016) (online), at p. 5).

Furthermore, this conclusion does notaffect the enforceability of treaty provisions, implemented through legislation, that explicitly require pre-legislative consultation (see e.g.Nisga’a Final Agreement (1999), c. 11, paras. 30 and 31; Nisga’a Final Agreement Act, S.B.C. 1999, c. 2; Nisga’a Final Agreement Act,S.C. 2000, c. 7). Manner and form requirements (i.e. procedural restraints on enactments) imposed by legislation are binding (Hogg, at s.12.3(b); see also R. v. Mercure, (SCC), [1988] 1 S.C.R. 234). [52] I add this.

Even though the duty to consult does not apply to the law-making process, it does not necessarily followthat once enacted, legislation that may adversely affect s. 35 rights is consistent with the honour of the Crown. The constitutionalprinciples — such as the separation of powers and parliamentary sovereignty ― that preclude the application of the duty to consultduring the legislative process do not absolve the Crown of its duty to act honourably or limit the application of s. 35.

While anAboriginal group will not be able to challenge legislation on the basis that the duty to consult was not fulfilled, other protections maywell be recognized in future cases. Simply because the duty to consult doctrine, as it has evolved to regulate executive conduct, isinapplicable in the legislative sphere, does not mean the Crown qua sovereign is absolved of its obligation to conduct itself honourably. [53] For these reasons, I would dismiss the appeal.

The reasons of Abella and Martin JJ. were delivered by [54] Abella J. — I agree with Justice Karakatsanis that the appeal should be dismissed on the grounds that judicialreview under the Federal Courts Act, R.S.C. 1985, c. F-7, is not available for the actions of federal Ministers in the parliamentaryprocess (ss. 2(2), 18 and 18.1).

But, in my respectful view, the enactment of legislation with the potential to adversely affect rightsprotected by s. 35 of the Constitution Act, 1982 does give rise to a duty to consult, and legislation enacted in breach of that duty may bechallenged directly for relief. [55] The honour of the Crown governs the relationship between the government of Canada and Indigenous peoples.

Thisobligation of honour gives rise to a duty to consult and accommodate that applies to all contemplated government conduct with thepotential to adversely impact asserted or established Aboriginal and treaty rights, including, in my view, legislative action. The duty toconsult arises based on the effect, not the source, of the government action.

The Crown’s overarching responsibility to act honourably inall its dealings with Indigenous peoples does not depend on the formal label applied to the type of action that the government takes withrespect to Aboriginal rights and interests protected by s. 35 of the Constitution Act, 1982.

As a constitutional imperative, the honour ofthe Crown cannot be undermined, let alone extinguished, by the legislature’s assertion of parliamentary sovereignty. [56] The analysis in this case must begin with the fundamental principle of Canadian Aboriginal law that thegovernment’s relationship with Indigenous peoples is governed by the honour of the Crown (Haida Nation v. British Columbia (Ministerof Forests), 2004 SCC 73 , [2004] 3 S.C.R. 511, at para. 17; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 62).

According to this principle, servants of the Crown must conduct themselves with honourwhen acting on behalf of the sovereign (Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 , [2013] 1S.C.R. 623, at para. 65). The honour of the Crown is always at stake in its dealings with Indigenous peoples, whether through theexercise of legislative power (see R. v. Spa

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