May 2013 Aboriginal Law Section Does the Crown Hold a Duty to Consult Aboriginal Peoples Prior to Introducing Legislation? By Ashley Stacey and Nikki Petersen* The duty to consult and, where appropriate, accommodate is triggered where Aboriginal interests are potentially adversely impacted by Crown conduct. Frog Lake First Nation ( Frog Lake ) and Mikisew Cree First Nation ( Mikisew Cree ) recently filed applications that raise an important question about the duty to consult: does the executive branch of the federal Crown hold a duty to consult prior to introducing legislation that potentially adversely impacts Aboriginal or treaty rights? In January 2013, Frog Lake and Mikisew Cree each brought an application for judicial review of the process by which federal Omnibus Bills C-45 and C-38 were introduced to the House of Commons. Both bills dramatically change environmental regulation in Canada and have a strong potential to impact Aboriginal and treaty rights. 1 The applications name as respondents the Governor-General in Council and various Ministers, and assert that the federal government failed to fulfill its constitutional duty to consult. An excerpt from the Frog Lake application states: The Respondents knew or ought to have known that the new environmental policy would significantly and adversely affect the assessment of how proposed development will impact treaty harvesting rights and how those impacts are accounted for in the planning and conduct of such development. In particular, the Respondents knew or ought to have known that the new environmental policy would reduce the federal role in the assessment and management of such impacts and therefore significantly reduce the degree to which Frog Lake and other First Nations could consult with Canada. The new environmental policy would also significantly reduce the extent to which Canada could affect, minimize, avoid or require compensation for the adverse impacts of proposed development. 2 1 West Coast Environmental Law Association, West Coast Submission to the Standing Senate Committee on Energy, the Environment and Natural Resources Regarding Omni Bill C-45 (November 2012), online: West Coast Environmental Law <http://wcel.org/resources/publication/west-coast-submission-standing-senate-committee-energyenvironment-and-natur-0>. 2 Notice of Application, Frog Lake First Nation v Minister of Aboriginal Affairs et al. at para 35. See also Notice of Application, Mikisew Cree First Nation v Minister of Aboriginal Affairs et al. at para 34.
2 In our view the Crown was obligated to consult with Aboriginal peoples prior to introducing Bill C-45 and Bill C-38 and its failure to do so is open to challenge. Courts have found that in certain circumstances, such as the protection of constitutional rights, Parliament must follow a process beyond that usually required to pass legislation. Requiring the Crown to consult Aboriginal peoples before introducing legislation is appropriate given the important role environmental regulation plays in upholding the Crown s treaty obligations. Is there a duty to consult prior to the introduction of legislation? The duty to consult is protected by section 35 of the Constitution Act, 1982 and is grounded in the honour of the Crown. 3 It is a constitutionally protected process meant to limit the Crown s ability to run roughshod over Aboriginal interests. 4 As we explain below, the introduction of each of Bill C-45 and Bill C-38 satisfied the test for triggering the duty to consult Aboriginal peoples. Triggering the Duty to Consult The duty to consult is triggered when the Crown has knowledge, real or constructive, of the potential existence of Aboriginal rights or title that may be adversely impacted by the proposed Crown conduct. 5 (1) Knowledge by the Crown of a potential claim or right The threshold for meeting the first requirement is not high. The courts have said that actual knowledge will arise where claims are filed in court or when a treaty right may be impacted. 6 Frog Lake and Mikisew Cree rely on their treaties (respectively Treaty 6 and Treaty 8) with the Crown as evidence that this criterion is satisfied. (2) Crown conduct or decision Our article addresses a question left open by the Supreme Court: does Crown conduct that may trigger the duty to consult include designing, introducing and implementing legislation? 7 The Court was clear in Rio Tinto that Crown actions are not confined to those that can be measured by their immediate impacts. Crown conduct can extend to public policy or strategic, higher level decisions that impact Aboriginal rights and treaty rights. 8 3 Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650 at para 32 [Rio Tinto]. 4 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 at para 27. 5 Ibid at para 35. 6 Rio Tinto, supra note 3 at para 40. 7 Ibid at para 44. Notice of Application, Frog Lake First Nation v Minister of Aboriginal Affairs et al. at para 2. Notice of Application, Mikisew Cree First Nation v Minister of Aboriginal Affairs et al., at para 2. 8 Rio Tinto, ibid.
3 The Alberta Court of Appeal considered this issue in R v Lefthand. The Court found that the Crown did not hold a duty to consult prior to introducing legislation. The Court reasoned such a duty would burden Parliament with extra procedural requirements. 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 no duty to consult prior to the passage of legislation, even where aboriginal rights will be affected: Authorson v. Canada (Attorney General), 2003 SCC 39 (CanLII), [2003] 2 S.C.R. 40. It cannot be suggested there are any limits on Parliament s right to amend the Indian Act. It would be an unwarranted interference with the proper functioning of the House of Commons and the Provincial Legislatures to require that they engage in any particular processes prior to the passage of legislation. The same is true of the passage of regulations and Orders in Council by the appropriate Executive Council. Enactments must stand or fall based on their compliance with the constitution, not based on the processes used to enact them. Once enactments are in place, consultation only becomes an issue if a prima facie breach of an aboriginal right is sought to be justified: Mikisew Cree at para. 59. 9 In our respectful view, the reliance on the Authorson decision is misplaced. 10 That case concerned veterans affairs, and the plaintiffs argued for a process based on the quasi-constitutional protection of property in the Bill of Rights. The Haida decision was released after Authorson and has changed the landscape and courts thinking about how Crown actions affect reconciliation with Aboriginal peoples. Then in Rio Tinto the Supreme Court expanded the scope of what the courts consider to be Crown conduct. Significantly, Rio Tinto explicitly left open the question of whether consultation is required prior to passing legislation that would adversely affect Aboriginal and treaty rights. 11 There is also authority that supports a conclusion that consultation should occur at the early stages of legislative development. 12 Procedural requirements in advance of the introduction of legislation are not novel. Outside the Aboriginal law context, the executive may (through legislation) impose additional procedural requirements on itself. In particular, the executive may face self-imposed procedural (or manner and form ) requirements 9 R v Lefthand, 2007 ABCA 206 (CanLII) at para 38 [Lefthand]. 10 Authorson v Canada (Attorney General), 2003 SCC 39 (CanLII), [2003] 2 SCR 40. 11 Rio Tinto, supra note 3 at para 44. The Court said, We leave for another day the question of whether government conduct includes legislative action: see R. v. Lefthand. 12 Slatter JA in Lefthand, supra note 9 at para 39 supported this argument and found that consultation should occur at the planning stage before legislative action. For example, consultation may be appropriate where a study group is established to make regulations respecting fisheries under Treaty 7. See also Tsuu T ina Nation v Alberta (Minister of the Environment), 2010 ABCA 137, [2010] AJ No 479 at para 35. The Court concluded that the duty to consult could still attach to parties developing policy around the legislation or making recommendations concerning future policies.
4 prior to the introduction to the House of Commons of legislation that has a constitutional aspect. 13 For example, the Supreme Court of Canada decision in Re Canada Assistance Plan held that: Where a statute is of a constitutional nature and governs legislation generally, rather than dealing with a specific statute, it can impose requirements as to manner and form. 14 The courts will enforce this extra process as long as the manner and form provision explicitly locates the procedural requirements prior to the introduction of legislation. 15 It is significant that, while these examples are outside the Aboriginal law context, the executive can be and has been willing to be subjected to extra procedural requirements. If a court found that introducing legislation with clear impacts on treaty rights does not constitute Crown conduct that triggers the duty to consult, treaty rights would be rendered less meaningful. The Crown could then abdicate through deregulation its responsibility to deal fairly and honourably with treatied First Nations. This is not in keeping with the goal of reconciliation. We conclude that the introduction of Bills that enact, amend, or repeal legislation that impacts on treaty rights is Crown conduct sufficient to trigger the duty to consult. (3) Adverse impact of the proposed Crown conduct on an Aboriginal claim or right To trigger the duty to consult an Aboriginal or treaty right under section 35 must be potentially adversely impacted. There must be a causal connection between the proposed government conduct and the potential for an Aboriginal or treaty right to be impacted. 16 Past wrongs and speculative action will not suffice, as consultation is limited to impacts flowing from current government conduct. 17 Several decisions confirm that in the absence of an adverse impact on a demonstrated Aboriginal or treaty right, there is no obligation to consult. 18 Frog Lake and Mikisew Cree assert that the federal government knew or ought to have known that introducing Bills C-38 and C-45 would adversely affect their treaty rights by reducing the extent to which the federal government could address adverse impacts from developments affecting those rights. The issue is whether 13 Peter Hogg, Constitutional Law of Canada (Toronto: Carswell, 2007) at 12.3(b). 14 Re Canada Assistance Plan, [1991] 2 SCR 525, [1991] SCJ No 60 at para 74. 15 At first instance in Friends of Canada Wheat Board v Canada, 2011 FC 1432 (CanLII) the Federal Court found that the Minister s decision to introduce the legislation disposing of the Canada Wheat Board was reviewable for lack of attention to the manner and form process provision of their governing statute. The decision was reversed in Canada (Attorney General) v Friends of the Canadian Wheat Board, 2012 FCA 183 (CanLII) based on statutory interpretation. The manner and form provision needed to explicitly restrict Parliament s ability to amend or repeal the Canada Wheat Board governing legislation. 16 Rio Tinto, supra note 3 at para 45. 17 Ibid at paras 46-49. 18 In Acadia Band v Minister of National Revenue (2008), 2008 CAF 119 the Federal Court did not discuss whether consultation was owed before the Minister made decisions under the GST/HST legislation because it had not been established that there was a potential credible Aboriginal right protected under section 35. Similarly, in Halcrow v Canada (Attorney General), [2003] 4 FC 1043 the Federal Court left open whether consultation was required prior to passing federal regulations because there was no Aboriginal or treaty right sufficiently pleaded. The Court concluded that there was no freestanding ground to consultation.
5 the federal government has an obligation to protect treaty lands and habitat such that to remove legislated procedural protections of these lands and habitat would constitute an adverse impact to rights over those lands. Frog Lake and Mikisew Cree do not directly assert that the Crown has a positive obligation to protect treaty lands, although Professor Shin Imai argues that such an obligation flows logically from the obligation not to interfere with treaty rights. 19 We agree with Prof. Imai a positive obligation is consistent with upholding the honour of the Crown and fulfilling the Crown s treaty obligations. Conclusion The question of whether the Crown holds a duty to consult Aboriginal peoples prior to introducing legislation remains unsettled. Federal Bills C-45 and C-38 have considerably changed the landscape of environmental regulation in Canada and their effect on Aboriginal and treaty rights across Canada is troubling to many First Nations. Our analysis supports the conclusion that these Bills triggered the duty to consult but it is clear that courts addressing the question will be concerned to protect Parliamentary sovereignty. Those courts should be comforted that, outside of the Aboriginal law context, courts have found that imposing extra procedural requirements on the passage of legislation was an appropriate and effective way to balance Parliamentary sovereignty against other interests and rights. *Ashley Stacey and Nikki Petersen are third year JD students at Osgoode Hall Law School and are alumni of the Osgoode Intensive Program in Aboriginal Lands, Resources and Governments. Ashley Stacey is a Mohawk from Kahnawà:ke and Nikki Petersen is from Vancouver. 19 See Shin Imai, Treaty Lands and Crown Obligations: The Tracts Taken Up (2001), 27 Queen s LJ 1-49.