OTTAWA – The supreme Court of Canada has determined that the federal ministers have not the duty to consult with aboriginal groups when they develop laws.
In a decision issued Thursday, about a First Nation in Alberta, a majority of the members of the highest court of the country stated that the process of legislation is not a behavior of the Crown subject to the obligation to consult with aboriginal peoples.
The decision helps clarify the measures that the federal government must take – and times where it must take to satisfy the obligation of the Crown to act honourably in its relations with aboriginal groups.
The Mikisew cree First Nation argued that the former conservative government would have had to consult on legislative proposals likely to affect its treaty rights.
In 2012, the government had introduced two omnibus bills that have a significant impact on the canadian system of environmental protection.
Bills C-38 and C-45 have changed the fisheries Act, the Act on the species at risk Act and the navigable waters protection, in addition to updating the Act, the canadian environmental assessment act.
A judge of the federal Court stated that there was a duty to consult the Mikisew, as the proposals would have an impact on the fishing, trapping and navigation.
The federal Court of appeal overturned the decision, claiming that the inclusion of the duty to consult in the legislative process, contrary to the doctrine of the separation of powers and the principle of parliamentary privilege.
Seven judges of the supreme Court have concluded that there was no obligation to consult during the legislative process, but they are not agreed on the reasons.
Justice Andromache Karakatsanis, who has written to his account and that of two other judges, said that the drafting of laws by ministers is generally protected by the control of the courts.
“Constitutional principles long-established in support of this reluctance to monitor the legislative process”, she wrote in her reasons.
“If we were to recognize that a duty to consult applies to the legislative process, it would oblige the courts to unduly interfere in the sphere of the legislature.”