Supreme Court decision in Mikisew falls short on reconciliation

By Chris Evans

Aboriginal and treaty rights have always been limited by non-Indigenous people’s anxiety that they threaten Canadian sovereignty. Although largely unspoken, this anxiety is hard at work in the Supreme Court of Canada’s decision in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 (Mikisew).

In Haida Nation, the Court conceived the duty to consult and accommodate (the “Duty”) as a way to reconcile the conflicting sovereignties of Indigenous peoples and Canadian governments. In Mikisew, the Court considered whether the Duty extends to the process of developing policy leading up to the formulation and introduction of a bill in Parliament. In saying that the Duty does not go so far, the three majority opinions (those of Justices Karakatsanis, Brown and Rowe) assert that Parliamentary sovereignty and other constitutional principles are near absolutes that prevent the Duty from placing limits on how Parliament operates. They reject Justice Abella’s suggestion that these principles must be reconciled with the Honour of the Crown, which is also a constitutional principle. Observing that the Court specifically held in Sparrow that s. 35 of the Constitution Act, 1982 is a limit on Parliamentary sovereignty, Justice Abella drily notes that “[i]t seems to me quite ironic that parliamentary sovereignty would now be used as a shield to prevent the Mikisew’s claim for consultation.”

While the majority opinions suggest that the absolute nature of parliamentary privilege and separation of powers conclusion flows inexorably from fundamental first principles, they are actually making new law. The Court’s past decisions left open the possibility that the Duty could apply to the making of legislation, explicitly leaving the issue open in Rio Tinto. Justice Abella points out a number of Supreme Court of Canada decisions that “specifically contemplate the imposition of constitutional norms on the legislative process,” and that the Sparrow justification test and modern treaties may require the Court to assess whether the Crown has fulfilled the Duty with respect to the enactment of legislation. Justice Rowe even acknowledges that some of the provinces already do consult with Indigenous peoples before enacting legislation.

The majority opinions are also forced to engage in some intense legal gymnastics to explain how, for example, the Queen is not actually “the Crown” when she gives royal assent to legislation, or that enacting environmental legislation is not Crown conduct even though it is the quintessential example of a high-level management or policy decision and a structural change to resource management. They also decline to mention that their decision contradicts the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has endorsed. Article 19 provides:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Justice Abella rightly points out that whether the Duty is triggered should not depend on whether adverse impacts on Aboriginal and treaty rights are formally labelled as executive or legislative – the central issue is about what the effect is on these rights. Justice Karakatsanis accepts that these are “valid concerns,” but does not address them except by vaguely suggesting that “other protections may well be recognized in future cases.” Justice Brown, speaking for the majority on this point, denies that such other protections may exist, but offers no solution of his own. Justice Rowe reiterates that Indigenous peoples can bring an action for unjustified infringement of proven rights.

As noted at the beginning, underlying the majority opinions is the notion that consulting with Indigenous peoples threatens to grind the business of government to a halt. However, Mikisew went to great lengths to show that the policy making process is flexible enough to allow for consultation, and that consultation often does occur within that process. Justices Brown and Karakatsanis ignore this evidence entirely, and Justice Rowe only engages with it to enumerate a long list of hypothetical problems. It is disappointing that the Court declined to even consider whether it could work. As Justice Abella acknowledges, the Duty is flexible and can be adapted as the context requires.

There are a number of aspects of the decision that will be troubling for Indigenous nations seeking to protect their rights. Ultimately, reconciliation is going to be very difficult to achieve absent legislative processes that fully respect Aboriginal and treaty rights. It is also concerning that the Court appears to be stepping away from the notion that reconciliation should take place outside the court room given that the only remedy the majorities seem to recognize is after-the-fact litigation. This will create a significant burden on already over-burdened Indigenous nations to expend resources to secure basic protections for their rights.