Mikisew Cree First Nation v. Canada

Duty to consult - Legislation - Omnibus bills - Treaty rights - Division of powers

The Federal Court of Canada released a decision on December 19, 2014 in Mikisew Cree First Nation v. Canada (Governor General in Council), allowing in part the Mikisew Cree First Nation's application for judicial review of the federal government's introduction of Bills C-38 and C-45 in 2012 (the "Omnibus Bills"), which resulted in significant changes to Canada's environmental laws, on the basis that the Crown had failed to consult the Mikisew prior to introducing these Bills into Parliament. Although the Court found that the Mikisew were owed a duty to consult and this duty had not been fulfilled by the Crown, only declaratory relief was granted.

The Mikisew were not consulted prior to the introduction of either of the Omnibus Bills into Parliament in 2012. The Omnibus Bills amended several key federal environmental laws, including the Fisheries Act, the Species At Risk Act, the former Navigable Waters Protection Act (amended and renamed the Navigation Protection Act), and the former Canadian Environmental Assessment Act, 1992 (repealed and replaced with the Canadian Environmental Assessment Act, 2012 or CEAA 2012). The Court stated that the effect of these changes is "arguably to reduce the number of bodies of water in Canada that are required to be monitored by federal officials thereby affecting fishing, trapping and navigation", and some of the water bodies affected by these changes are in Mikisew's Treaty No. 8 territory.

The Mikisew conceded that they were precluded from seeking a judicial review of Canada's legislative duties under s. 2(2) of the Federal Courts Act, and Mikisew did not seek a judicial review of: (i) the content of the Omnibus Bills before they became law; (ii) any decision of a Member of Parliament or Parliamentary committee upon the Omnibus Bills' introduction into Parliament; or (iii) any particular decision of a Minister or Minister's officials in implementing legislation. Instead, Mikisew sought judicial review in relation to the process that Ministers of the Crown undertake before legislation is drafted and presented to Parliament. In terms of the matter's justiciability, the Court found Mikisew's application had a sufficiently legal component to warrant judicial intervention, since it centred on the Crown's legal and enforceable duty to consult. The Court also found that it was not premature to consider this issue.

The Court held that the duty to consult would not be triggered with respect to procedural changes proposed for legislation, as Parliament is best placed to make such policy choices. Likewise, the Court held that for the purposes of this case, the existence of a duty to consult would not provide a basis for judicial intervention before a bill is introduced into Parliament, as this would constitute undue judicial interference and compromise "the sovereignty of Parliament". Nevertheless, the Court held that the changes that the Omnibus Bills introduced with respect to CEAA 2012, the Navigation Protection Act and the Fisheries Act, which resulted in a reduced scope for federal environmental protection within Mikisew's Treaty No. 8 territory, presented a sufficient potential risk to the fishing, hunting and trapping rights of the Mikisew so as to trigger the duty to consult. This duty to consult was triggered at the moment of the Omnibus Bills' introduction into Parliament, but it was found to be at the lower end of the Haida spectrum since the legislative changes had yet to apply to specific situations involving the Mikisew.

The Court issued a declaration to the effect that "the Crown had, in the circumstances of this case, a duty to consult the Mikisew at the time that each of the Omnibus Bills was introduced into Parliament which duty comprised the giving of notice to the Mikisew of those portions of each of those Bills as might potentially have an impact on the usual vocations of the Mikisew, as defined in Treaty No. 8, together with giving the Mikisew a reasonable opportunity to make submissions". The Court declined, however, to issue any injunctions in relation to the legal changes implemented through the Omnibus Bills, as "[t]he scope of the terms of such an order would be almost impossible to define" and "[t]he effect of such an order would place an undue fetter on the workings of government".