2016 FCA 311, 2016 FCA 311

[2017] 3 F.C.R. 298 A-29-15 2016 FCA 311 The 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 ( Appellants ) v. Chief Steve Courtoreille on Behalf of Himself and the Members of the Mikisew Cree First Nation ( Respondent ) Indexed as: Canada (Governor General in Council) v. Mikisew Cree First Nation Federal Court of Appeal, Pelletier, Webb and de Montigny JJ.A.—Edmonton, May 12; Ottawa, December 7, 2016.

Aboriginal Peoples — Duty to consult — Appeal, cross-appeal from Federal Court decision granting in part respondent’s application for judicial review claiming appellants breaching duty to consult Mikisew Cree First Nation (Mikisew Cree) on development, introduction of omnibus bills affecting their treaty rights — Omnibus bills resulting in legislative changes relating to environment, navigable waters — Mikisew Cree arguing, inter alia, Crown having duty to consult during development, introduction of omnibus bills in Parliament — Federal Court finding, inter alia, application not precluded by Federal Courts Act , s. 2(2) — Declaring Crown having duty to consult with the Mikisew Cree at time each omnibus bill introduced in Parliament by giving notice, opportunity to provide submissions — Appeal allowed, cross-appeal dismissed — Appellant ministers’ source of power legislative, deriving from status as members of Parliament — Therefore, matter not proper subject for judicial review under Act — Federal Court erring in declaring notice be given to Mikisew Cree in respect of provisions impacting their rights upon introduction of omnibus bills — Legislative process matter solely within purview of Parliament — Imposing duty to consult at any stage of process as legal requirement impractical, cumbersome, fettering ministers in their law-making capacity — Courts cannot, should not intervene before statute actually adopted.

Administrative Law — Judicial Review — Federal Court granting in part respondent’s application for judicial review claiming appellants breaching duty to consult Mikisew Cree First Nation (Mikisew Cree) on development, introduction of omnibus bills affecting their treaty rights — Federal Court finding, inter alia, application not precluded by Federal Courts Act , s. 2(2) — Whether Federal Court conducting judicial review of legislative action contrary to Federal Courts Act — Per de Montigny J.A. (Webb J.A. concurring): Appellant ministers’ source of power legislative, derived from status as members of Parliament — Therefore, matter not proper subject for judicial review under Act — To be subject to judicial review, impugned decision or order must be made by “federal board, commission or other tribunal” — Here, to extent ministers, Governor in Council acting in their legislative capacity, judicial review not available — Ministers engaged in law-making process not acting as statutory decision makers but as legislators; actions, decisions thereof immune from judicial review — Per Pelletier J.A. (concurring reasons): Mikisew Cree’s notice of application, although procedurally flawed, justiciable as claim for relief against Crown pursuant to Act, s. 17 — Nature of relief sought by Mikisew Cree declaratory with ancillary orders in support thereof — Declaration sought in application against someone other than federal board, commission or tribunal not dooming it to failure — Such proceeding may be granted remedy by Federal Court under Act, s. 17 — Because declaration (and injunction) available by way of action against Crown, characterization of respondent as federal board, commission or tribunal not critical to success or failure of proceeding seeking declaration — Mikisew Cree’s application not doomed as result of simple procedural irregularity.

Constitutional Law — Fundamental Principles — Separation of powers — Federal Court granting in part respondent’s application for judicial review claiming that appellants breached duty to consult Mikisew Cree First Nation (Mikisew Cree) on development, introduction of omnibus bills affecting their treaty rights — Mikisew Cree arguing, inter alia, Crown having duty to consult during development of legislation — Federal Court declaring Crown having duty to consult with the Mikisew Cree at time each omnibus bill introduced in Parliament by giving notice, opportunity to provide submissions — Issue whether Federal Court erring by failing to respect doctrine of separation of powers or principle of parliamentary privilege — Per de Montigny J.A. (Webb J.A. concurring): Federal Court erring in declaring that notice should be given to Mikisew Cree in respect of provisions impacting their rights, together with opportunity to make submissions, upon introduction of omnibus bills — Declaration inconsistent with Federal Court’s previous findings that courts shall not intervene in law-making process as it would be an undue interference with Parliament’s process, sovereignty — Also failing to recognize that no court has ever claimed jurisdiction over introduction of legislation in Parliament — Legislative process matter solely within purview of Parliament — Imposing duty to consult at any stage of process as legal requirement impractical, cumbersome, fettering ministers in their law-making capacity — Courts cannot, should not intervene before statute adopted — Per Pelletier J.A. (concurring reasons): — Argument that relief sought by Mikisew Cree barred by doctrine of separation of powers conflating questions of whether duty to consult arising, effect to be given if it did — Duty to consult not triggered by legislation of general application whose effects not specific to particular Aboriginal peoples — Duty to consult cannot render effective government impossible — Duty must be found in the decisions by which legislation operationalized.

This was an appeal and cross-appeal from a decision of the Federal Court granting in part the respondent’s application for judicial review claiming that the appellants breached their duty to consult the Mikisew Cree First Nation (Mikisew Cree) on the development and introduction in Parliament of two omnibus bills that might affect their treaty rights under Treaty No. 8 to hunt, fish and trap. The appellant Minister of Finance’s omnibus bills resulted in legislative changes related to the environment and navigable waters.

The Mikisew Cree alleged that those omnibus bills reduced the types of projects that were subject to federal environmental assessment, the navigable waters that required federal approval to build obstructing works on them, the protection of fish habitat, and the requirements to approve effects on species at risk. The Mikisew Cree argued, inter alia , that the Crown should have consulted with it during the development of that legislation and upon its introduction in Parliament.

The Federal Court found, inter alia , that the application was not precluded by subsection 2(2) of the Federal Courts Act (Act), which states that a “federal board, commission or other tribunal” does not include, amongst others, “the Senate, the House of Commons, [or]

any committee or member of either House”. The Federal Court was of the view that the Mikisew Cree sought judicial review of the actual process undertaken by ministers “before legislation has been drafted and presented to Parliament”. The Federal Court also found that that if there was a duty to consult, it could not trigger any judicial intervention before a bill was introduced into Parliament by virtue of the separation of powers doctrine; and that the provisions which triggered a duty to consult could have been triggered when the omnibus bills were introduced to Parliament.

The Federal Court went on to declare that the Crown had a duty to consult with the Mikisew Cree at the time each omnibus bill was introduced in Parliament by giving notice and an opportunity to provide submissions. The main issues were whether the Federal Court erred in conducting a judicial review of legislative action contrary to the Act , and by failing to respect the doctrine of separation of powers or the principle of parliamentary privilege. Held , the appeal should be allowed; the cross-appeal should be dismissed.

Per de Montigny J.A. (Webb J.A. concurring): The source of the power that the appellant ministers exercised and which is the true object of the respondent’s complaint was legislative in nature and derived from their status as members of Parliament. Therefore, the matter was not a proper subject for an application for judicial review under the Act .

On a plain reading of sections 18 and 18.1 of the Act , along with the definition provided for “federal board, commission or other tribunal” at paragraph 2(1) and the exclusion from that definition of the Senate and House of Commons at paragraph 2(2) , two requirements are needed for the Federal Court of Appeal and the Federal Court to be validly seized of an application for judicial review: (1) there must be an identifiable decision or order in respect of which a remedy is sought; (2) the impugned decision or order must be made by a “federal board, commission or other tribunal”.

In the case at bar, the second of these conditions was not met. It was difficult to conceive of any discrete decision made by the Governor in Council or the various ministers that were the subject of this application for judicial review. The language of subsections 18.1(3) and (4) of the Act is permeated with notions that partake to administrative law. It is not the kind of language used in relation to legislative action. To the extent that the ministers and the Governor in Council were acting in their legislative capacity in developing the two omnibus bills, judicial review would not be available.

Various statutes provide for the appointment of ministers, establish the scope of their mandates, and provide a basic framework of powers, duties and functions. Nowhere, however, do those statutes refer even implicitly to the ministers’ roles as policy makers or to the development of legislation for introduction into Parliament. This is not to say that such a responsibility is not part of their mandate as ministers; but it flows from the Constitution itself and from Canada’s system of parliamentary democracy, and not from a delegation of powers from Parliament to the executive.

The exercise of such powers is not reviewable by way of judicial review. The legislative process is a fluid exercise involving many players, both at the political and at the government officials level. It would be artificial to parse out the elements of a minister’s functions associated to either its executive or legislative functions for the purpose of drawing a red line between the dual roles of the members of Cabinet. The Federal Court correctly found that the power exercised by the ministers in the entire course of the law-making process was legislative in nature. The Supreme Court in Ontario v.

Criminal Lawyers’ Association of Ontario referred to the “legislative branch” as opposed to the “legislature”, thereby implicitly recognizing that the legislative function is not under the exclusive purview of parliamentarians in Canada’s system of government, where Cabinet ministers are by convention elected members of Parliament. In that context, it was difficult to understand why the Federal Court adopted a restrictive

interpretation of subsection 2(2) of the Act. When read in its historical perspective, and bearing in mind the true nature of judicial review, the exclusion of the Senate and of the House of Commons in that subsection is not only meant to protect the existing function of parliamentary privilege by ensuring that judicial review is not extended to ministers acting in their capacity as members of Parliament or Senators, but more broadly to preclude judicial review of the legislative process at large.

When ministers are engaged in the law-making process, they are not acting as statutory decision makers but as legislators, and their actions and decisions are immune from judicial review. With respect to the doctrine of separation of powers and the principle of parliamentary privilege , the Federal Court erred in declaring that notice should have been given to the Mikisew Cree in respect of those provisions that might have reasonably been expected to impact their rights, together with an opportunity to make submissions, upon the introduction of each omnibus bill into Parliament.

This declaration was inconsistent with the Federal Court’s previous findings that courts shall not intervene in the law-making process as it would be an undue interference with Parliament’s process and sovereignty, and failed to recognize that no court has ever claimed jurisdiction over the introduction of legislation in Parliament. The legislative process, from its very inception where policy options are discussed and developed to the actual enactment of a bill following its adoption by both Houses and the granting of royal assent by the Governor General, is a matter solely within the purview of Parliament.

Imposing a duty to consult at any stage of the process, as a legal requirement, would not only be impractical and cumbersome and potentially grind the legislative process to a halt, but would also fetter ministers and other members of Parliament in their law-making capacity.

The respondent and other First Nations are not without any recourse: Ministers are free to consult before introducing legislation into Parliament; First Nations and band representatives may lobby government officials and members of Parliament to ensure that their interests and grievances are taken into account, and may seek to be heard before parliamentary committees.

To the extent that the impugned decisions directly derive from the policy choices embedded in a statute, the validity of such a statute may be called into question, and consultation prior to the adoption of that statute will be a key factor in determining whether the infringement of an Aboriginal or treaty right is justified. But courts cannot and should not intervene before a statute is actually adopted. To come to the opposite conclusion would stifle parliamentary sovereignty and would cause undue delay in the legislative process.

Per Pelletier J.A. (concurring reasons): Even if the Mikisew Cree’s notice of application fails as an application for judicial review, it is nonetheless justiciable as a claim for relief against the Crown pursuant to

section 17 of the Act , even though it may be procedurally flawed. This is because of the nature of the relief sought by the Mikisew Cree, which is primarily declaratory with ancillary orders in support of the declarations. A declaration can be obtained by application or by action. A declaration that is sought in an application (as opposed to an action) against someone other than a federal board, commission or tribunal does not doom it to failure. While such a proceeding may not be an application for judicial review, it may nonetheless seek a remedy which the Federal Court has the power to grant under

section 17 rather than

section 18 of the Act. Because declaration (and injunction) is available by way of action against the Crown, the characterization of the respondent as a federal board, commission or tribunal is not critical to the success or failure of a proceeding seeking a declaration. The Mikisew Cree’s application was not doomed to fail as a result of what may be a simple procedural irregularity. The appellants’ argument that the relief sought by the Mikisew Cree was barred by the doctrine of the separation of powers conflates the questions of whether the duty to consult arises, and the effect it is to be given if it does.

The honour of the Crown vis-à-vis Aboriginal peoples was not engaged by the amendments because the duty to consult is not triggered by legislation of general application

whose effects are not specific to particular Aboriginal peoples or to the territories in which they have or claim an interest. The origin and development of the duty to consult does not support the view that it requires the Crown to consult with Aboriginal peoples in cases where the governmental action is aimed at the whole of the territory of Canada and all of its peoples. The question of whether governmental action giving rise to the duty to consult includes legislative action, a question left open by the Supreme Court in Rio Tinto Alcan Inc. v.

Carrier Sekani Tribal Council , must be answered in the negative insofar as the legislation in issue is of general application. The duty to consult cannot be conceived in such a way as to render effective government impossible. The threshold at which the duty to consult arises cannot be set so low that it is triggered by legislative action which is not aimed at specific Aboriginal groups or to territories in which they have, or claim, an interest. The duty must be found in the decisions by which such legislation is operationalized.

Given that there is no duty to consult with respect to laws of general application, the question of where in the legislative process that consultation might occur did not arise. To that extent, the distinction which the Mikisew Cree sought to draw between policy development and the legislative process did not assist them in this case. If the duty to consult did not arise, the question of the modalities of that consultation did not arise either.

STATUTES AND REGULATIONS CITED Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures , 41st Parl., 1st Sess., 2012. Bill C-45, A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures , 41st Parl., 1st Sess., 2012. Canadian Bill of Rights , S.C. 1960, c. 44, [R.S.C., 1985, Appendix III], s. 1(a). Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2( d ). Canadian Environmental Assessment Act , S.C. 1992, c. 37 (rep. by S.C. 2012, c. 19, s. 66 ). Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52 , art. 5(1). Canadian Environmental Protection Act, 1999 , S.C. 1999, c. 33. Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5],

Part IV, s. 91(24). Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35. 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 “federal board, commission or other tribunal”, 17, 18, 18.1, 28. Federal Courts Rules , SOR/98-106, rr. 56, 57, 58, 59, 60.

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, Growth and Long-Term Prosperity Act , S.C. 2012, c. 19. Jobs and Growth Act, 2012 , S.C. 2012, c. 31. Navigation Protection Act , R.S.C., 1985, c. N-22. Royal Proclamation, 1763 (The) , R.S.C., 1985, Appendix II, No. 1. Species at Risk Act , S.C. 2002, c. 29. Water Act , R.S.A. 2000, c. 3, s. 9. TREATIES AND OTHER INSTRUMENTS CITED Treaty No. 3 (1873). Treaty No. 8 (1899). CASES CITED

APPLIED: Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, (1991), 83 D.L.R. (4th) 297; Galati v. Canada (Governor General), 2015 FC 91, [2015] 4F.C.R. 3. DISTINGUISHED: Tsuu T’ina Nation v. Alberta (Environment), 2010 ABCA 137 , 482 A.R. 198; Native Women’s Assn. of Canada v. Canada, (FCA), [1992] 3 F.C. 192, (1992), 95 D.L.R. (4th) 106 (C.A.), revd (SCC), [1994] 3 S.C.R. 627,(1994), 119 D.L.R. (4th) 224. CONSIDERED: Rio Tinto Alcan Inc. v.

Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Haida Nation v. British Columbia (Minister ofForests), 2004 SCC 73, [2004] 3 S.C.R. 511; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585;Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737; Air Canadav. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605; R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, (1990),70 D.L.R. (4th) 385; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010, (1997), 153 D.L.R. (4th) 193;Mikisew Cree First Nation v.

Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; R. v. Lefthand, 2007 ABCA206 , [2007] 10 W.W.R. 1; Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, 358 D.L.R. (4th) 100;Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40; Re: Resolution to amend the Constitution, (SCC), [1981] 1 S.C.R. 753, (1981), 34 Nfld. & P.E.I.R. 1; Health Services and Support – Facilities Subsector Bargaining Assn. v.British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ward v. Samson Cree Nation No. 444, , 247 N.R. 254 (F.C.A.);Daniels v.

Canada (Indian Affairs and Northern Development), 2013 FC 6, [2013] 2 F.C.R. 268; Krause v. Canada, (FCA), [1999] 2 F.C. 476, (1999), 19 C.C.P.B. 179 (C.A.). REFERRED TO: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; Grassy Narrows First Nation v. Ontario (NaturalResources), 2014 SCC 48, [2014] 2 S.C.R. 447; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; MiningWatch Canada v.Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6; ITO—International Terminal Operators Ltd. v. Miida Electronics Inc.et al., (SCC), [1986] 1 S.C.R. 752, (1986), 28 D.L.R. (4th) 641; Canada v.

Tremblay, 2004 FCA 172, [2004] 4 F.C.R.165; Anisman v. Canada (Border Services Agency), 2010 FCA 52, 400 N.R. 137; Southam Inc. v. Canada (Attorney General), (FCA), [1990] 3 F.C. 465, (1990), 73 D.L.R. (4th) 289 (C.A.); New Brunswick Broadcasting Co. v. Nova Scotia (Speakerof the House of Assembly), (SCC), [1993] 1 S.C.R. 319, (1993), 118 N.S.R. (2d) 181; R. v. Power, (SCC), [1994] 1 S.C.R. 601, (1994), 117 Nfld. & P.E.I.R. 269; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62,[2003] 3 S.C.R. 3; Newfoundland (Treasury Board) v.

N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Canada (House of Commons) v.Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Chartrand v. BritishColumbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345, 95 Admin. L.R. (5th) 229, sub nom. Kwakiutl FirstNation v. North Island Central Coast Forest District, [2015] B.C.J. No. 1605 (QL); Squamish Nation v. British Columbia (Community,Sport and Cultural Development), 2014 BCSC 991, [2014] 8 W.W.R. 742; Fort Nelson First Nation v.

British Columbia (EnvironmentalAssessment Office), 2015 BCSC 1180, 88 Admin. L.R. (5th) 100; Dene Tha’ First Nation v. Canada (Minister of Environment), 2006 FC1354, 25 C.E.L.R. (3d) 247; Sambaa K’e Dene First Nation v. Duncan, 2012 FC 204, [2012] 2 C.N.L.R. 369; Da’naxda’xw/AwaetlalaFirst Nation v. British Columbia (Environment), 2011 BCSC 620, [2011] 3 C.N.L.R. 188; Wells v. Newfoundland, (SCC), [1999] 3 S.C.R. 199, (1999), 180 Nfld. & P.E.I.R. 269; Meredith v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R.125; Beauchamp v.

Canada (Attorney General), 2009 FC 350, 189 C.R.R. (2d) 269; Canada (Attorney General) v. Campbell, , 4 B.C.T.C. 110 (B.C.S.C.); Chief Mountain v. Canada, 2000 BCCA 260. AUTHORS CITED Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, March 2011. Bagehot, Walter. The English Constitution, 2nd ed. London and Edinburgh: Thomas Nelson & Son, 1872. Brown, Donald J.M. and John M. Evans. Judicial Review of Administrative Action in Canada, looseleaf, Toronto: Thomson ReutersCanada, 2016. Guide to Making Federal Acts and Regulations, 2nd ed.

Ottawa: Privy Council Office, 2001. Newman, Dwight G. Revisiting The Duty to Consult Aboriginal Peoples, Saskatoon: Purich Publishing, 2014. APPEAL and CROSS-APPEAL from a decision of the Federal Court (Courtoreille v.

Canada (Aboriginal Affairs and NorthernDevelopment), 2014 FC 1244, 93 C.E.L.R. (3d) 199) granting in part the respondent’s application for judicial review claiming that theappellants breached their duty to consult the Mikisew Cree First Nation on the development and introduction in Parliament of twoomnibus bills that reduced federal regulatory oversight on works and projects that might affect their treaty rights to hunt, fish and trap.Appeal allowed; cross-appeal dismissed. APPEARANCES Kathleen Kohlman and Cynthia Dickins for appellants. Robert Janes, Q.C., Karey Brooks and Estella Charleson for respondent.

SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. JFK Law Corporation , Vancouver, for respondent. The following are the reasons for judgment rendered in English by [ 1 ] de Montigny J.A .: This is an appeal and cross-appeal of a judgment rendered on December 19, 2014 [ Courtoreille v.

Canada (Aboriginal Affairs and Northern Development) , 2014 FC 1244 , 93 C.E.L.R. (3d) 199] (the reasons for judgment) by Justice Hughes of the Federal Court (the Judge) granting in part the application for judicial review of Chief Steve Courtoreille of the Mikisew Cree First Nation (Mikisew Cree), claiming that the Governor General in Council, the Minister of Aboriginal Affairs and Northern Development, the Minister of Finance, the Minister of the Environment, the Minister of Fisheries and Oceans, the Minister of Transport and the Minister of Natural Resources (collectively the appellants) breached their duty to consult the Mikisew Cree on the development and introduction in Parliament of two omnibus bills that reduced federal regulatory oversight on works and projects that might affect their treaty rights to hunt, fish and trap. [ 2 ] This case raises an issue that has not yet been dealt with by any appeal court: does the Crown have an obligation to consult when contemplating changes to legislation that may adversely impact treaty rights, and if so, to what extent?

Indeed, the Supreme Court explicitly went out of its way in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council , 2010 SCC 43 , [2010] 2 S.C.R. 650 ( Rio Tinto ), at paragraph 44 , to decline addressing that issue, “leav[ing] for another day the question of whether government conduct includes legislative action” for the purpose of triggering the duty to consult and, where appropriate, to accommodate Aboriginal groups. The Judge below recognized, for the first time, that the Crown had such a duty to consult with the Mikisew Cree when the two omnibus bills were introduced in Parliament.

The content of the duty included the giving of notice to the Mikisew Cree of the portions of each of those bills that could potentially have an impact on their treaty rights, as well as the provision of a reasonable opportunity to make submissions. [ 3 ] Having carefully considered the submissions made by the parties, both orally and in writing, I am of the view that this appeal should be granted. In particular, I find that legislative action is not a proper subject for an application for judicial review under the Federal Courts Act , R.S.C., 1985, c.

F-7 [the Act], and that importing the duty to consult to the legislative process offends the separation of powers doctrine and the principle of parliamentary privilege. I. Facts [ 4 ] The facts leading to this case are not complex and can be briefly summarized. The Mikisew Cree is a band within the meaning of the Indian Act , R.S.C., 1985, c.

I-5, whose traditional territory is located in northeastern Alberta, and whose ancestors adhered to Treaty No. 8, which guarantees their right to hunt, trap and fish throughout the territory covered by that treaty. [ 5 ] In 2012, the Minister of Finance introduced Bill C-38 [ An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures ], enacted as the Jobs, Growth and Long-Term Prosperity Act , 41st Parl., 1st Sess., 2012 (assented to 29 June 2012), S.C. 2012, c. 19 and Bill C-45 [ A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures ], enacted as the Jobs and Growth Act, 2012 , 41st Parl., 1st Sess., 2012 (assented to 14 December 2012), S.C. 2012, c. 31.

These two omnibus bills resulted in the repeal of the Canadian Environmental Assessment Act , S.C. 1992, c. 37; the enactment of the Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52 (CEAA, 2012); as well as in amendments to the Fisheries Act , R.S.C., 1985, c. F-14, the Species at Risk Act , S.C. 2002, c. 29, the Canadian Environmental Protection Act, 1999 , S.C. 1999, c. 33 and the Navigable Waters Protection Act , renamed the Navigation Protection Act , R.S.C., 1985, c.

N-22 (NPA). [ 6 ] Mikisew Cree alleges that the omnibus bills reduced the types of projects that were subject to federal environmental assessment, reduced the navigable waters that required federal approval to build obstructing works on them, diminished the protection of fish habitat, and reduced the requirements to approve effects on species at risk.

Since environmental assessments and other federal approval mechanisms typically allow First Nations to voice their concerns about effects on its treaty rights to hunt, fish and trap, and have those rights accommodated, the Mikisew Cree argue that this reduction in oversight may affect their treaty rights and accordingly, the Crown should have consulted with it during the development of that legislation and upon its introduction in Parliament. The Mikisew Cree sought declaratory and injunctive relief against the Crown before the Federal Court. II.

The impugned decision [ 7 ] On the standard of review, the Judge noted that the application required a de novo consideration of the circumstances, and as such there was no standard of review. [ 8 ] First, the Judge found that the application was not precluded by subsection 2(2) of the Federal Courts Act , which states that a “federal board, commission or other tribunal” does not include, amongst others, “the Senate, the House of Commons, [or] any committee or member of either House”.

While he took issue with the applicant’s characterization of the matter as “executive” rather than “legislative” in nature, the Judge noted that the applicant was not seeking judicial review of the content of the bills, of decisions of committees or members upon their introduction in Parliament, or of any particular decision of a minister in implementing legislation.

Rather, it was his view that judicial review of the actual process undertaken by ministers “before legislation has been drafted and presented to Parliament” was being sought (reasons for judgment, at paragraph 22). [ 9 ] Second, the Judge found that the matter was justiciable, entailing the determination of whether a legal and enforceable duty to consult existed, and that the matter was not premature (reasons for judgment, at paragraph 29). [ 10 ] Third, the Judge found that if there was a duty to consult, it could not trigger any judicial intervention before a bill was introduced into Parliament by virtue of the separation of powers doctrine.

The Judge acknowledged the tension between the traditional reluctance of courts to impose any procedural requirements upon the legislative process, and the constitutional duty to consult arising

from

section 35 of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. Hefound that neither Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257 (Tsilhqot’in) nor Grassy Narrows FirstNation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447 (Grassy Narrows) stood for the proposition that legislationconstitutes Crown conduct for the purposes of the duty to consult, and that certain passages of Haida Nation v.

British Columbia(Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 (Haida Nation) and Rio Tinto suggest the contrary, since in both such cases, theCourt refused to dictate a particular regulatory scheme that Parliament should adopt to comply with the duty to consult.

On thatreasoning, the Judge found that the duty to consult was not triggered by legislative provisions that made “procedural changes”, such asthe provisions of the CEAA, 2012 and of the Fisheries Act that allow the Crown to transfer its duty to consult to provincial authorities;public notification requirements in the NPA; time-limits and restrictions on public participation in environmental assessments as foundunder the CEAA, 2012; and the transfer of responsibilities for pipeline and powerline regulations and species at risk certifications to theNational Energy Board. [11] In response to the applicant’s argument that the duty to consult and judicial review could nonetheless attach to the policydevelopment occurring prior to the decision to draft legislation, the Judge found that restraints on the executive’s policy choices todevelop legislation is a restraint on the legislative branch itself, relying mainly on Ontario v.

Criminal Lawyers’ Association of Ontario,2013 SCC 43, [2013] 3 S.C.R. 3 (Criminal Lawyers’ Association) and Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525 (re Canada Assistance Plan). He found that the ministers acted in their legislative capacity in reaching thedecision at issue in the application, and that the above-noted cases applied in the Aboriginal context since the result of applying the dutyto consult to the law-making process would equally place procedural constraints on Parliament (reasons for judgment, at paragraphs 65–67).

He further noted that the law-making process requires flexibility, and that having the duty to consult apply to this process wouldconstrain it. [12] The Judge then considered whether the honour of the Crown in its dealings with Aboriginal peoples mandated a departure fromthe traditional separation of powers doctrine with respect to the legislative process.

On this point, he noted that Treaty No. 8 containedno special provisions that would “allow the Mikisew, in preference to other Canadians, to intervene in the legislative process before a billthat may, in some arguable way, interfere with the Mikisew’s treaty rights of fishing and trapping” (reasons for judgment, at paragraph71).

Although the Judge qualified this proposition by indicating that “[t]his does not mean that all legislative conduct will automaticallyfail to constitute Crown conduct for the purpose of triggering a duty to consult”, he found that intervention in the law-making process inthis case would compromise parliamentary sovereignty.

He therefore concluded that if there was a duty to consult, it could not triggerany judicial intervention prior to the introduction of a bill in Parliament. [13] Fourth, the Judge applied the test from Haida Nation to establish whether a duty to consult exists, which asks whether (1) theCrown has knowledge, real or constructive, of the potential existence of an Aboriginal or treaty right, and (2) contemplates conduct that(3) might adversely affect it (Haida Nation, at paragraph 35).

Regarding knowledge of the Aboriginal or treaty right, the Judgeacknowledged the Crown’s concession that it has knowledge of Mikisew Cree’s treaty rights. With respect to the requirement of Crownconduct, the Judge proceeded on the assumption that the steps ministers take prior to the introduction of a bill in Parliament constituteCrown conduct that can give rise to the duty to consult (reasons for judgment, at paragraph 84).

As for the potential adverse effects, theJudge found that the reduction of navigable waters that are protected under the NPA and the reduction of protection to fish habitat underthe Fisheries Act constitute a sufficient potential risk to fishing and trapping rights to trigger the duty to consult. He emphasized thatpotential harm is sufficient under the Haida Nation test.

However, with respect to the CEAA, 2012, the Judge found that the narrowerscope of consideration of environmental effects should not affect Aboriginal peoples given subsection 5(1) of the CEAA, 2012, and thatthe amendments to the Species at Risk Act would not allow individuals to engage in activities that affect listed wildlife species.

TheJudge concluded that for the provisions which triggered a duty to consult (i.e., those found in the NPA and in the Fisheries Act), it couldhave been triggered when the omnibus bills were introduced to Parliament (reasons for judgment, at paragraph 99). [14] The Judge went on to discuss the extent of that duty, concluding that the amendments to the NPA and the Fisheries Act triggereda duty to give notice and a reasonable opportunity to make submissions, but did not result in a duty to accommodate, because theprovisions had not yet been applied to any specific situations that would trigger the higher end of the spectrum of consultation describedin Haida Nation. [15] Fifth, the Judge found that the appropriate remedy was a declaration to the effect that the Crown had a duty to consult with theMikisew Cree at the time each omnibus bill was introduced in Parliament by giving notice and an opportunity to provide submissions.On injunctive relief, he found that there would be no value in such an order, which would be impossible to define and would undulyfetter the workings of government (reasons for judgment, at paragraph 106).

The Judge found that the constitutional nature of the duty toconsult allowed the Court to review the conduct at issue, but that in deciding on a remedy, it should grant no relief beyond a declarationin recognition of the constitutional responsibilities of the legislative branch (reasons for judgment, at paragraph 107). Since the omnibusbills had already been enacted, a declaration that the Crown should consult would be pointless; however, the Judge found that adeclaration on the existence of the duty to consult would have practical value for the parties’ future obligations in implementing TreatyNo. 8. III.

Issues [16] I agree with the respondent that the issues on the appeal and cross-appeal overlap, and that there is no use in parsing them out.Overall, the case raises the following questions: A. Did the Judge err in conducting a judicial review of legislative action contrary to the Federal Courts Act? B. Did the Judge err by failing to respect the doctrine of separation of powers or the principle of parliamentary privilege? C. Did the Judge err in concluding that the duty to consult had been triggered? D.

Did the Judge err in determining the appropriate remedy? [17] As I dispose of this appeal on the basis of issues A and B, issues C and D will not be addressed in my analysis below.

IV. Analysis [18] There is no dispute between the parties that the issues raised on this appeal are subject to the standard of correctness as questionsof law (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235), except for any factual findings underlying the existence of the duty toconsult, which are reviewable on palpable and overriding error (Haida Nation, at paragraph 61), and the Judge’s discretionary decisionregarding the remedy to grant, which is also subject to deference (MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2,[2010] 1 S.C.R. 6, at paragraph 43).

I shall therefore proceed with my analysis, keeping in mind these various standards of review. A. Did the Judge err in conducting a judicial review of legislative action contrary to the Federal Courts Act? [19] The first hurdle that an applicant must surmount when filing a proceeding in the Federal Court is jurisdictional. As a statutorycourt, the Federal Court must have been granted jurisdiction by Parliament to deal with the subject matter of the proposed application oraction (ITO—International Terminal Operators Ltd. v.

Miida Electronics Inc. et al., (SCC), [1986] 1 S.C.R. 752, at page766; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 (TeleZone), at paragraph 43). [20] When the Federal Courts Act was adopted in 1971, an important consideration was the need for a national and coherentperspective on judicial review of federal public bodies; as a result, the jurisdiction of the former Exchequer Court was expanded toconfer on the Federal Court and the Federal Court of Appeal the exclusive supervisory function to review the decisions of federaldecision makers (see Hupacasath First Nation v.

Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R.(4th) 737, at paragraph 52; Canada v. Tremblay, 2004 FCA 172, [2004] 4 F.C.R. 165). [21] By its very nature, judicial review is concerned with the rule of law and the objective of ensuring that government officials, fromthe highest ranking representatives to those operating at the lower echelons, act within the boundaries of the law.

As the Supreme Courtstated in TeleZone, “[j]udicial review is directed at the legality, reasonableness, and fairness of the procedures employed and actionstaken by government decision makers” (at paragraph 24). It is concerned with government action, and not with legislation. [22] This rationale is reflected in the wording of sections 18 and 18.1 of the Federal Courts Act, along with the definition providedfor “federal board, commission or other tribunal” at paragraph 2(1) and the exclusion from that definition of the Senate and House ofCommons at paragraph 2(2) of that same Act. These provisions read as follows:

Definitions 2

(1) In this Act, … federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdictionor powers conferred by or under

an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than theTax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person orpersons appointed under or in accordance with a law of a province or under

section 96 of the Constitution Act, 1867; (office fédéral) … Senate and House of Commons

(2) For greater certainty, the expression federal board, commission or other tribunal, as defined in subsection (1), does not include theSenate, the House of Commons, any committee or member of either House, the Senate Ethics Officer, the Conflict of Interest and EthicsCommissioner with respect to the exercise of the jurisdiction or powers referred to in sections 41.1 to 41.5 and 86 of the Parliament ofCanada Act or the Parliamentary Protective Service. … Extraordinary remedies, federal tribunals 18

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief,against any federal board, commission or other tribunal; and (

b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), includingany proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. Extraordinary remedies, members of Canadian Forces

(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus adsubjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces servingoutside Canada. Remedies to be obtained on application

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section18.1. Application for judicial review

18.1

(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matterin respect of which relief is sought. Time limitation

(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be madewithin 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to theoffice of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of theFederal Court may fix or allow before or after the end of those 30 days. Powers of Federal Court

(3) On an application for judicial review, the Federal Court may (

a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonablydelayed in doing; or (

b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as itconsiders to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. Grounds of review

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (

a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (

b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (

c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (

d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for thematerial before it; (

e) acted, or failed to act, by reason of fraud or perjured evidence; or (

f) acted in any other way that was contrary to law. Defect in form or technical irregularity

(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the FederalCourt may (

a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (

b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, tohave effect from any time and on any terms that it considers appropriate. [23] On a plain reading of these provisions, there would appear to be two requirements for this Court or the Federal Court to bevalidly seized of an application for judicial review. First, that there be an identifiable decision or order in respect of which a remedy issought. Second, that the impugned decision or order be made by a “federal board, commission or other tribunal”.

In the case at bar, thesecond of these conditions is clearly not met. [24] It is difficult to conceive of any discrete decision made by the Governor in Council or the various ministers that would be thesubject of this application for judicial review. Indeed, the relief requested by the respondent is of a declaratory and injunctive nature withrespect to the development of the omnibus bills. The Judge found as much at paragraph 16 of his reasons, where he stated explicitly that“[t]his is not a review of any decision or order of a federal board”.

He did say, later on in his reasons, that “there is a sufficient legal basisfor the Court to review the matter judicially: namely, whether the legal and enforceable duty to consult applies to the decisions at issue”[emphasis added] (reasons for judgment, at paragraph 29), and that “the [m]inisters acted in their legislative capacity to make decisionsthat were legislative in nature” [emphasis added] (reasons for judgment, at paragraph 66). It is not clear, however, what particulardecisions he was referring to in the above-referenced passages.

If it is the decision to move forward with a policy initiative with a view tobringing proposed legislation to Cabinet for approval and eventually, to Parliament for adoption, it would presumably not meet therequirement for a formal decision as it would be inchoate in nature and not formally recorded. [25] Be that as it may, this is not the argument put forward by the respondent. Instead, it argues that the Federal Courts Act does notrequire that there be a “decision”, but only a “matter” triggering rights to judicial review. They rely for that proposition on the reasons ofthis Court in Air Canada v.

Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 (Air Canada) (per Stratas J.), which the Judgequoted at length and purportedly applied.

The crux of the Court’s reasoning can be grasped from the following excerpt: Subsection 18.1(1) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act provides that an application forjudicial review may be made by the Attorney General of Canada or by anyone directly affected by “the matter in respect of which reliefis sought.” A “matter” that can be subject of judicial review includes not only a “decision or order”, but any matter in respect of which aremedy may be available under

section 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] of the Federal Courts Act: Krause v.Canada, (FCA), [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27]sheds further light on this, referring to relief for an “act or thing”, a failure, refusal or delay to do an “act or thing”, a “decision”, an“order” and a “proceeding”. Finally, the rules that govern applications for judicial review apply to “applications for judicial review of

administrative action”, not just applications for judicial review of “decisions or orders”: rule 300 [as am. by SOR/2002-417, s. 18(E);2004-283, s. 37] of the Federal Courts Rules [SOR/98-106, r. 1 (as am. idem, s. 2)]. Air Canada, at paragraph 24. [26] Assuming that the focus of the inquiry is whether the decision maker has done anything which may have triggered rights on thepart of the aggrieved party to bring a judicial review, the respondent still has to establish that the Federal Court is empowered to act andto provide a remedy.

Typically, the kind of remedies available on an application for judicial review are couched with a view to ensuringthat the legal framework within which the executive branch of the government must act is complied with.

The language of subsections18.1(3) and (4) is permeated with notions that partake to administrative law (consider, for instance, the following terms used in thesesubsections: “unlawfully”, “unreasonably delayed”, “invalid or unlawful”, “quash, set aside or set aside and refer back forredetermination”, “prohibit or restrain”, “acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction”,“failed to observe a principle of natural justice”, “erred in law”, “erroneous finding of fact”, “acted in any other way that was contrary tolaw”).

This is clearly not the kind of language used in relation to legislative action. To the extent, therefore, that the ministers and theGovernor in Council were acting in their legislative capacity in developing the two omnibus bills, as argued by the appellants, judicialreview would clearly not be available.

This brings me to the second requirement for the Federal Court (and this Court) to havejurisdiction pursuant to sections 18 and 18.1 of the Federal Courts Act. [27] Sections 18 and 18.1 of the Federal Courts Act make it clear that it is only those decisions made and actions taken by a “federalboard, commission or other tribunal” that can be the subject of the supervisory jurisdiction of the Federal Court (and of the Federal Courtof Appeal pursuant to

section 28 of the Federal Courts Act). It is well established that the test for determining whether a person or bodyfalls within the definition of those words as found in subsection 2(1) involves two questions. First, what is the particular jurisdiction orpower that is being exercised, and second (and more importantly), what is the source of that jurisdiction or power (see Anisman v.Canada (Border Services Agency), 2010 FCA 52, 400 N.R. 137, at paragraphs 29–31; Air Canada, at paragraph 47). As Donald J.M.Brown and John M.

Evans put it in Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Thomson Reuters Canada,2016), at paragraph 2:4310: In the result, the source of a tribunal’s authority, and not the nature of either the power exercised or the body exercising it, is the primarydeterminant of whether it falls within the definition.

The test is simply whether the body is empowered by or under federal legislation orby an order made pursuant to a prerogative power of the federal Crown. [Emphasis in the original; references omitted.] [28] The respondent argues that ministers are not acting as members of Parliament empowered to legislate by

Part IV of theConstitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [reprinted in R.S.C., 1985, Appendix II, No. 5] during the policy development phase oflaw making, but rather, they are exercising their executive powers as Cabinet ministers responsible for their departments pursuant tovarious departmental acts (see Department of Indian Affairs and Northern Development Act, R.S.C., 1985, c. I-6; Department of theEnvironment Act, R.S.C., 1985, c. E-10; Department of Fisheries and Oceans Act, R.S.C., 1985, c. F-15; Department of Transport Act,R.S.C., 1985, c.

T-18; Department of Natural Resources Act, S.C. 1994, c. 41; Financial Administration Act, R.S.C., 1985, c. F-11).These various statutes provide for the appointment of ministers; establish the scope of their mandates; provide a basic framework ofpowers, duties and functions they may exercise in delivering on their mandates and for which they are accountable; create departmentsover which they preside; and organize resources to support them in the discharge of their responsibilities.

Nowhere, however, do theseacts refer even implicitly to their role as policy makers or to the development of legislation for introduction into Parliament. This is not tosay that such a responsibility is not part of their mandate as ministers; but it flows from the Constitution itself and from our system ofparliamentary democracy, and not from a delegation of powers from Parliament to the executive. The exercise of such powers is notreviewable by way of judicial review (Southam Inc. v.

Canada (Attorney General), (FCA), [1990] 3 F.C. 465 (C.A.),at paragraphs 27–29). [29] The respondent proposes that a distinction be drawn between ministers acting as policy makers and ministers acting aslegislators. Indeed, the respondent argued that the law-making process can be neatly split between the consultation part, on the one hand,and the various steps following the approval by the relevant Cabinet policy committee of the memorandum through which policyapproval and authority to draft a bill is sought, on the other.

But as shown by a document describing the law-making process at thefederal level published by the Privy Council Office and to which the Judge referred at length in paragraphs 31 to 36 of his reasons (seeGuide to Making Federal Acts and Regulations, 2nd ed., 2001, affidavit of Douglas Nevison, Exhibit H, appeal book, Vol. 19, at page5752 and ff.), the legislative process is a fluid exercise involving many players, both at the political and at the government officials level.It would be artificial to parse out the elements of a minister’s functions associated to either its executive or legislative functions for thepurpose of drawing a red line between the dual roles of the members of Cabinet. [30] In that respect, I am of the view that the Judge correctly found that the power that the ministers exercised in the entire course ofthe law-making process was legislative in nature.

He rightly came to that conclusion after quoting from the decision of the majority ofthe Supreme Court in Criminal Lawyers’ Association, at paragraph 28 (per Karakatsanis J.): Over several centuries of transformation and conflict, the English system evolved from one in which power was centralized in the Crownto one in which the powers of the state were exercised by way of distinct organs with separate functions. The development of separateexecutive, legislative and judicial functions has allowed for the evolution of certain core competencies in the various institutions vestedwith these functions.

The legislative branch makes policy choices, adopts laws and holds the purse strings of government, as only it canauthorize the spending of public funds. The executive implements and administers those policy choices and laws with the assistance of aprofessional public service. The judiciary maintains the rule of law, by interpreting and applying these laws through the independent andimpartial adjudication of references and disputes, and protects the fundamental liberties and freedoms guaranteed under the Charter. [31] I shall return in the next

section of these reasons to the concept of the separation of powers and its consequences in the case atbar. Suffice it to say, for the moment, that making policy choices and adopting laws are explicitly recognized as functions of thelegislative branch. It is also worth noting that Justice Karakatsanis, in the above-quoted excerpt, refers to the “legislative branch” asopposed to the “legislature”; she thereby implicitly recognized that the legislative function is not under the exclusive purview ofparliamentarians in our system of government, where Cabinet ministers are by convention elected members of Parliament and are “a

hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state” (emphasis in the original), touse the words of Walter Bagehot, The English Constitution, 2nd ed. (London and Edinburgh: Thomas Nelson & Son, 1872), at page 14. [32] In that context, it is difficult to understand why the Judge adopted a restrictive

interpretation of subsection 2(2) of the FederalCourts Act. While admitting that this provision would preclude the intervention of the Court if the proceedings could be said to engagethe parliamentary process, he emphasized that it was the process undertaken by the ministers before any piece of legislation had beendrafted and presented to Parliament that was at stake here.

Not only does this finding appear to run counter to his view that the ministersacted in their legislative capacity when they made the decisions leading to the formulation and introduction of the omnibus bills toParliament (see reasons for judgment, at paragraph 66), but it also seems at odds with a contextual and purposive construction ofsubsection 2(2) of the Federal Courts Act.

When read in its historical perspective, and bearing in mind the true nature of judicial review,the exclusion of the Senate and of the House of Commons in that subsection is not only meant to protect the existing function ofparliamentary privilege by ensuring that judicial review is not extended to ministers acting in their capacity as members of Parliament orSenators, as the respondent would have it, but more broadly to preclude judicial review of the legislative process at large.

Whenministers are engaged in the law-making process, at whatever stage, they are not acting as statutory decision makers but as legislators,and their actions and decisions are immune from judicial review. [33] Finally, the respondent relied on two cases in support of its argument that a distinction must be drawn between ministers acting intheir parliamentary roles, that is, after a bill has received Cabinet approval and is introduced in Parliament, and ministers acting asmembers of the executive in the process of developing the policy and recommendations leading up to the decision to formulate andintroduce a bill.

The first is Tsuu T’ina Nation v. Alberta (Environment), 2010 ABCA 137 , 482 A.R. 198 (Tsuu T’ina Nation)where the First Nation applied for judicial review and sought a declaration that Alberta had a duty to consult with and accommodate itsclaimed treaty and Aboriginal rights and failed to discharge that duty in adopting a water management plan. I do not find this case ofparticular relevance, if only because the Cabinet and the ministers were acting as delegates pursuant to legislative authority.

Section 9 ofthe Water Act, R.S.A. 2000, c. 3, allowed the Minister of Environment to require that a water management plan be developed by aDirector or another person; the Director was also required to engage in such public consultation as the Minister considered appropriate.This is clearly a very different situation from the case at bar, where the ministers are acting as legislators and not as administrativedecision-makers. [34] The second case relied upon by the respondent is the decision of this Court in Native Women’s Assn. of Canada v.

Canada, (FCA), [1992] 3 F.C. 192 (C.A.) (Native Women’s Association, F.C.A.) in which the Native Women’s Association ofCanada (NWAC) challenged the government’s refusal to grant them equal funding to other, allegedly male-dominated, Aboriginalorganizations for the purpose of participating in the inquiry of a parliamentary committee on constitutional reform in the wake of theupcoming 1995 referendum in Québec.

After finding that the refusal to grant funding violated the NWAC members’ freedom ofexpression, the Federal Court of Appeal [at page 215] distinguished between the “formulation and introduction of a bill” occurring at thepolicy development stage from the process occurring once a policy has been decided upon and which sees steps being taken toimplement it by way of legislation. In light of this distinction, the Court concluded that it could interfere with the committee’s process atthe policy-making stage.

The Supreme Court of Canada reversed the Federal Court of Appeal on the finding that the NWAC’s freedomof expression had been violated. Accordingly, it did not discuss whether the Court could have interfered with the committee’s process(see Native Women’s Assn. of Canada v. Canada, (SCC), [1994] 3 S.C.R. 627). [35] The Native Women’s Association, F.C.A. decision does not strike me as particularly helpful for a number of reasons.

First, as justmentioned, the distinction drawn by the Court between the “preparation of a bill for introduction after it has been decided that thesubject-matter is to be dealt with” and the “consultation, public or private, by Parliamentary Committee or otherwise, which thegovernment may choose to undertake after deciding that it might be desirable that a matter be dealt with by legislation but before it hasdecided how it wishes the legislature to deal with it or whether a legislative proposal is politically acceptable” (Native Women’sAssociation, F.C.A., at page 217), has not been endorsed by the Supreme Court. [36] Second, the process that was at stake in that case was of a constitutional nature and involved the formulation of a constitutionalresolution for the purposes of amending the fundamental law of the country, as opposed to the normal legislative process.

While thiscrucial distinction was not discussed by either the Federal Court of Appeal or the Supreme Court of Canada in Native Women’sAssociation, F.C.A., it is not a given that the same considerations apply to both of these processes. In fact, there the courts were notcommenting on the scope of the definition of a federal board for the purposes of filing an application for judicial review under

section 18of the Federal Courts Act, but rather on the broader issue of justiciability and the separation of powers which may arise in any form ofjudicial proceeding. [37] Finally, it appears that the availability of a

section 18 remedy rested on the assumption that the decision to invite some designatedAboriginal organizations to engage in a process parallel to that of the Parliamentary Committee tasked to make recommendations onproposals for constitutional amendments, as well as the decision to allocate federal funding to those organizations, had been made by anauthorized emanation of the federal government and that the funding must have been made by a federal board. As stated by this Court: …. As I understand our Constitution, the expenditure of funds must have been authorized by Act of Parliament.

If, as it appears, theinvitation to join in the process was not authorized by Act or regulation, it must have been an exercise of Crown prerogative. Native Women’s Association, F.C.A., at page 214. [38] For all of the above reasons, I find this case manifestly insufficient to support the proposition put forward by the respondent andto depart from the well-established principles governing the jurisdiction of the Federal Court pursuant to sections 18 and 18.1 of theFederal Courts Act.

The source of the power that the appellant ministers exercised and which is the true object of the respondent’scomplaint was, in my opinion, legislative in nature and derived from their status as members of Parliament. Therefore, the matter is not aproper subject for an application for judicial review under the Federal Courts Act. [39] The matter could come to an end here, since the foregoing reasoning is sufficient to dispose of the matter. There is, however, amore fundamental and principled reason why the application for judicial review brought by the respondent cannot be entertained, to

which I shall now turn. B. Did the Judge err by failing to respect the doctrine of separation of powers or the principle of parliamentary privilege? [40] As previously alluded to, there is a clear tension in the case law between the doctrine of the separation of powers and the duty toconsult that has been developed as a result of the enactment of

section 35 of the Constitution Act, 1982. While the separation of powersdoctrine is not explicitly entrenched in the Canadian Constitution, courts have frequently recognized the normative value of that principle(see, for example, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993]1 S.C.R. 319, at page 389; R. v. Power, (SCC), [1994] 1 S.C.R. 601, at pages 620 and 621; Doucet-Boudreau v. NovaScotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paragraphs 33 and 34; Newfoundland (Treasury Board) v.

N.A.P.E.,2004 SCC 66, [2004] 3 S.C.R. 381, at paragraphs 104 and 105; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R.667, at paragraph 21; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44). The duty to consult, on the other hand, isnow more firmly established, but its contours are still imprecise, both with respect to the extent of its application and with regard to itsvariable requirements. [41] The source of the modern duty to consult is said to be the “honour of the Crown”, a concept linked to

section 35 of theConstitution Act, 1982 and sometimes to The Royal Proclamation, 1763 [R.S.C., 1985, Appendix II, No. 1], and more generally to theobjective of reconciliation following Canada’s colonial history with Aboriginal peoples. [42] The duty to consult first appeared in R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075 (Sparrow), where the Courtlaid out the approach to establish a

section 35 violation. First, the person invoking the

section 35 right must show that (1) it holds an“existing” Aboriginal or treaty right that was not extinguished in 1982, and (2) there has been a prima facie infringement of that right inthe sense of an unreasonable limitation, an undue hardship or a denial of the preferred means of exercising the Aboriginal or treaty right.Then, the burden is on the Crown to justify the interference based on a valid legislative objective, and to show that the interference isconsistent with the honour of the Crown and its fiduciary duty to Aboriginal peoples.

At the justification stage regarding the honour ofthe Crown, consultation with Aboriginal peoples was recognized (along with the issue of minimization of the infringement and faircompensation) as a factor that might justify an infringement of an Aboriginal fishing right caused by fishing regulations. [43] In Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010, the Supreme Court elaborated on thejustification test for an infringement of Aboriginal title.

Noting that Aboriginal title entailed the right to choose how the land would beused, the Court found that there was a duty of consultation, particularly when enacting hunting and fishing regulations relating toAboriginal lands. More recently, the Supreme Court revisited the test for justification of an infringement to proven Aboriginal title in thedecision of Tsilhqot’in.

The Court found that the Crown, to justify an infringement, would have to show that the procedural duty toconsult had been complied with, that there was a compelling and substantial objective for the infringement, and that the benefit to thepublic was proportionate to the adverse effect on Aboriginal interest.

As such, the duty to consult evolved from a factor to be considered,amongst others, in the justification stage of the infringement analysis, to a necessary condition of a finding of justification ofinfringement. [44] The duty to consult was also applied outside of the justification context in Mikisew Cree First Nation v. Canada (Minister ofCanadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, a decision which involved the

interpretation of the “taking up” clause in TreatyNo. 8. Mikisew Cree objected to Canada’s decision to take up land alongside its reserve to run a winter road, which incidentally cutthrough a number of its band members’ family traplines. The Supreme Court found that when contemplating a proposed taking up oflands under Treaty No. 8, the honour of the Crown imposes a distinct, procedural right to consultation.

In other words, the Crown couldnot invoke the Sparrow test to show that regardless of consultation, the infringement of the Mikisew Cree’s treaty rights was justifiable.The Crown had to first meet its duty to consult, and absent adequate consultation, the infringement was unjustifiable regardless of thesubstantive reasons that might justify running a road by the reserve. The same obligations attach to taking up lands under Treaty No. 3(see generally Grassy Narrows). [45] In 2004, the duty to consult was recognized in the context of asserted, but unproven claims to Aboriginal rights.

The SupremeCourt of Canada found in Haida Nation that it was inconsistent with the honour of the Crown for the province to allow continuedlogging over territories in a manner that might leave the Haida Nation with meaningless rights over lands of cultural significance oncethey managed to prove them in court.

The Court found that when the Crown contemplates conduct that may adversely affect an assertedAboriginal or treaty right, a duty to consult arises. [46] In Rio Tinto, the Supreme Court noted that the duty to consult attaches not only to decisions that directly result in adverseimpacts on resources, but also to “‘strategic, higher level decisions’” (at paragraph 44). This has generally involved decisions relating tothe management of a specific resource on the First Nations’ traditional territory.

Examples of such strategic planning decisions that havegiven rise to a duty to consult include the following: • The approval of a forest stewardship plan: Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations),2015 BCCA 345, 95 Admin. L.R. (5th) 229, sub nom. Kwakiutl First Nation v. North Island Central Coast Forest District, [2015] B.C.J.No. 1605 (QL); • A municipal land use plan: Squamish Nation v.

British Columbia (Community, Sport and Cultural Development), 2014 BCSC991, [2014] 8 W.W.R. 742; • An order-in-council enacting a regional water management plan: Tsuu T’ina Nation; • A decision to designate a project as subject to environmental assessment: Fort Nelson First Nation v. British Columbia(Environmental Assessment Office), 2015 BCSC 1180, 88 Admin. L.R. (5th) 100; • The design of the process for the environmental assessment of a gas pipeline: Dene Tha’ First Nation v. Canada (Minister ofEnvironment), 2006 FC 1354, 25 C.E.L.R. (3d) 247;

• A non-binding agreement-in-principle between the Crown and another First Nation with overlapping land claims: Sambaa K’eDene First Nation v. Duncan, 2012 FC 204, [2012] 2 C.N.L.R. 369; • A minister’s refusal to recommend a change to a conservancy boundary prior to its legislative enactment by the lieutenantgovernor-in-council: Da’naxda’xw/Awaetlala First Nation v.

British Columbia (Environment), 2011 BCSC 620, [2011] 3 C.N.L.R. 188. [47] When it comes to whether Crown conduct having the potential of triggering the duty to consult includes legislative action (asopposed to being limited to decisions purely administrative in nature), this matter has been expressly left open by the Supreme Court inRio Tinto. In the first appellate case where the issue was squarely raised and addressed, the Alberta Court of Appeal concluded that theduty to consult does not apply to the legislative process (see R. v.

Lefthand, 2007 ABCA 206 , [2007] 10 W.W.R. 1 (Lefthand)).Slatter J. found that there is no obligation to consult prior to the passage of legislation because this would be an interference with thefunctioning of the legislature: The duty to consult is of course a duty to consult collectively; there is no duty to consult with any individual. There can however be noduty to consult prior to the passage of legislation, even where aboriginal rights will be affected: Authorson v. Canada (AttorneyGeneral), 2003 SCC 39 , [2003] 2 S.C.R. 40.

It cannot be suggested there are any limits on Parliament’s right to amend theIndian Act. It would be an unwarranted interference with the proper functioning of the House of Commons and the ProvincialLegislatures to require that they engage in any particular processes prior to the passage of legislation. The same is true of the passage ofregulations and Orders in Council by the appropriate Executive Council. Enactments must stand or fall based on their compliance withthe constitution, not based on the processes used to enact them.

Once enactments are in place, consultation only becomes an issue if aprima facie breach of an aboriginal right is sought to be justified: Mikisew Cree at para. 59. Lefthand, at paragraph 38. [48] Slatter J. added that consultation might be relevant to justification, but that it was not a threshold validity issue (Lefthand, atparagraph 49).

Watson J. endorsed these comments, and added that courts should be wary of declaring justiciable a legislative processwhen the result of that process is already sufficiently vulnerable to constitutional evaluation and the consequences of the legislation arecapable of remedy under law if need be. In her concurring reasons, Conrad J. approached the case from a different angle, framing theissue as a conflict between the Sparrow framework and the approach adopted in both Haida Nation and Mikisew.

She concluded thatsince the regulation at issue was already enacted and the treaty rights proven, the circumstances more closely resembled those whicharose in Sparrow; as such, Conrad J. found that consultation should be considered as a factor in the justification analysis. [49] The Alberta Court of Appeal revisited the issue in Tsuu T’ina Nation, where two First Nations submitted that they were notconsulted nor accommodated by the Province of Alberta with respect to the development of the Water Management Plan for the SouthSaskatchewan River Basin (SSRB). As previously mentioned,

section 9 of the Water Act allows the Minister of Environment to requirethat a water management plan be developed by a Director or another person. The Minister accordingly asked a Director to develop such aplan for the SSRB. The Director was required to engage in such public consultation as the Minister considered to be appropriate, inaccordance with paragraph 9(2)(

f) of the Water Act. Commenting on the Crown’s argument that legislation cannot be invalidatedbecause of a failure to consult, the Court relied on a passage from Slatter J. in Lefthand recognizing that whether a duty to consult arisesbeyond the passage of legislation and regulations is not yet clear. Therein, Justice Slatter provided examples of the duty beingrecognized for administrative decision makers whose orders may impact Aboriginal rights and in the case of study groups tasked withmaking recommendations which may affect Aboriginal interests.

The Court then stated the following: Accordingly, even if the Legislature itself does not have a duty to consult prior to passing legislation, the duty may still fall upon thoseassigned the task of developing the policy behind the legislation, or upon those who are charged with making recommendationsconcerning future policies and actions. Here, the Director and the Department of the Environment were directed to develop a watermanagement plan for the purpose of making recommendations to the Lieutenant Governor in Council for his approval. The Water Actrequires consultation with stakeholders in developing a plan.

The situation appears similar to that spoken of by Slatter J.A. above, wherehe recognized that consultation may be appropriate in the case of a study group established to make regulations respecting the fisheriescovered in Treaty 7. Tsuu T’ina Nation, at paragraph 55. [50] Despite the seemingly broad language of the first sentence of this excerpt, I am of the view that it cannot be used by therespondent in support of its argument.

First of all, I note that the Water Act itself required consultation with stakeholders (which includedFirst Nations) to take place in developing a water plan and before making recommendations to the executive branch of government.Second, the consultations in Tsuu T’ina Nation occurred outside the legislative context, as they were to be conducted well after theenactment of the legislation.

This is obviously much different from the type of consultation that the respondent has in mind in the case atbar, which would arise as part of the process leading up to the enactment of legislation by Parliament. [51] This is not to say that a statutory regime that would not allow for consultation and that would fail to provide any other equallyeffective means to acknowledge and accommodate Aboriginal claims would be immune from a constitutional challenge. As the Court ofAppeal for Yukon found in Ross River Dena Council v.

Government of Yukon, 2012 YKCA 14, 358 D.L.R. (4th) 100, at paragraph 37,such a statute would probably be defective and vulnerable if relied upon to justify a decision susceptible to impede or prevent theenjoyment of some Aboriginal rights. But this is a far cry from saying that governments are constitutionally required to consult with FirstNations before introducing legislation. [52] The self-restraint that courts have so far shown when called upon to impose a duty to consult in the context of the legislativeprocess rests on solid, principled grounds.

Parliamentary sovereignty and the separation of powers doctrine are well-established pillars ofour Constitution and have been recognized by the Supreme Court on numerous occasions, most recently in Criminal Lawyers’Association. It is in recognition of these unwritten constitutional principles that the Supreme Court found in Authorson v. Canada(Attorney General), 2

[…]