On October 11, 2018, the Supreme Court of Canada released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 [Mikisew], in which the Court held that the Federal Government does not have a duty under s.35 of the Constitution Act, 1982 to consult Aboriginal Peoples in the development of legislation. Mikisew was an application by the Applicant Indian Band to the Federal Court for judicial review of Parliament’s introduction of two omnibus Bills in 2012 that had significant effects on Canada’s environmental protection regime and had the potential to adversely affect the Mikisew’s treaty rights to hunt, trap and fish. The Mikisew had not been consulted on either of the omnibus bills at any stage in their development or prior to the granting of royal assent. The Mikisew argued that the Crown had a duty to consult it on the development of the legislation.
While the Federal Court at the first level allowed the Mikisew’s Application, the Federal Court of Appeal granted the Crown’s appeal. In granting the appeal, the Federal Court of Appeal found that the reviewing judge had erred by conducting a judicial review of what amounts to a legislative action contrary to the Federal Courts Act, RSC 1985, c F-7.
The Issues before the Supreme Court of Canada were twofold:
- Did the Federal Court have jurisdiction under ss. 18 and 18.1 of the Federal Court’s Act to hear the Application?
- Does the development of legislation by Ministers trigger the duty to consult Aboriginal Peoples under s.35 of the Constitution Act, 1982?
On the first issue, the SCC found that while s.17 of the Federal Courts Act gives the Federal Court concurrent original jurisdiction where relief is claimed against the Crown, this jurisdiction does not extend to the review of the exercise of legislative power by executive actors. The SCC also found that ss. 18 and 18.1 of the Federal Courts Act only grant the Federal Court jurisdiction to judicially review action taken by a “federal board, commission or other tribunal”, which is defined in s. 2(1) of the Act as a body exercising statutory powers or powers under an order made pursuant to a prerogative of the Crown.
The SCC noted that s.2(2) of the Federal Courts Act specifies that the Senate, the House of Commons, or any committee or member of either House is not a federal board, commission or other tribunal within the meaning of s.2(1). Moreover, the SCC reasoned that Ministers do not act pursuant to statutory powers when developing legislation; rather, they act pursuant to powers under Part IV of the Constitution Act, 1867. The SCC held that Ministers, when developing legislation, do not act as a federal board, commission or other tribunal and their actions are immune from judicial review. The SCC outlined its reasons as follows:
“… the separation of powers and parliamentary privilege apply to parliamentary proceedings and to the process leading to the introduction of a bill in the House of Commons. The development, drafting and introduction of the omnibus bills are immune from judicial interference.” 1
According to the SCC, “the entire law-making process — from initial policy development to and including royal assent — is an exercise of legislative power which is immune from judicial interference”. 2
On the second issue, the SCC held that the duty to consult under s.35 applies only to executive, not legislative action. The SCC reasoned that the duty to consult doctrine is ill?suited for legislative action, and that it is rarely appropriate for courts to scrutinize the law?making process. According to the SCC, this judicial reluctance to supervise the legislative process derives from the Constitutional principle of the separation of powers, as Parliamentary sovereignty mandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority.
The SCC emphasized, however, that simply because the duty to consult doctrine is inapplicable in the legislative sphere, this does not mean the Crown is absolved of its obligation to act honourably. Despite its finding that legislation cannot be challenged on the basis of the duty to consult, the SCC left open the possibility for future case law to recognize another remedy where Aboriginal or treaty rights may be adversely affected by legislation.
Bill 4, the Cap and Trade Cancelation Act, and Public Consultation
On July 3, 2018, the Ontario Provincial government introduced O. Reg. 386/18 (“Regulation”) under the Climate Change Mitigation and Low-carbon Economy Act, SO 2016, c 7 (“CCMLE Act”). The Regulation revoked the operational elements of Ontario’s cap and trade system for reducing greenhouse gas emissions. Subsequently, on July 25, 2018, the Ontario Provincial Government introduced Bill 4, Cap and Trade Cancellation Act, 2018 (“Bill 4”) into the legislature, which, if enacted, would repeal the CCMLE Act.
On September 11, 2018, Greenpeace Canada filed an Application under s. 6(2) of the Judicial Review Procedure Act in the Superior Court of Justice challenging the Province’s introduction of O Reg 386/18 and Bill 4, arguing that the Province had failed to comply with its public consultation obligations under ss. 15 and 16 of the Environmental Bill Right Rights (“EBR”), which state:
s.15(1) “If a minister considers that a proposal under consideration in his or her ministry for a policy or Act could, if implemented, have a significant effect on the environment, and the minister considers that the public should have an opportunity to comment on the proposal before implementation, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented.”
s.16(1) “If a minister considers that a proposal under consideration in his or her ministry for a regulation under a prescribed Act could, if implemented, have a significant effect on the environment, the minister shall do everything in his or her power to give notice of the proposal to the public at least thirty days before the proposal is implemented”
On September 12, 2018, the day after Greenpeace initiated its Application, the Provincial Government announced that it would provide for a 30-day public consultation period regarding Bill 4. Greenpeace has declared this to be a “partial victory”, but has implied that it intends to proceed with its Application, stating that “the Ford government still must answer in court for its violations of Ontarians’ rights under the Environmental Bill of Rights”.
Mikisew’s Implications for the requirement of Public Consultation under the EBR
The Supreme Court’s decision in Mikisew raises the question of whether the Superior Court would grant a remedy for the Province’s failure to comply with the EBR in its introduction of Bill 4. The Supreme Court in Mikisew was clear that legislative action, i.e., the development of legislation, is not normally subject to judicial scrutiny.
Of course, an obvious difference between Greenpeace’s Application and Mikisew, is that Mikisew was decided in the context of the Federal Courts Act, which circumscribes the Federal Court’s jurisdiction to hear applications for judicial review. Unlike the Federal Court, the Ontario Superior Court of Justice is a court of inherent jurisdiction whose jurisdiction to judicially review governmental action is a common law right as opposed to a statutory grant of power.
Nevertheless, the common law of judicial review of administrative action dictates that the development of primary legislation does not generally attract administrative rights. 3 Recently, for instance, the Honourable Justice Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 [City of Toronto], reiterated this principle:
“The provincial legislature has no obligation to consult and no obligation of procedural fairness. The doctrine of legitimate expectations, an aspect of procedural fairness, does not apply to legislative enactments” 4
Similarly to Greenpeace in its Application, the Applicant in City of Toronto had argued that the City of Toronto Act, 2006, SO 2006, c 11, Sch A imposed on the Province a duty to consult the Applicant in the creation of Bill 5, Better Local Government Act, 2018. To this argument, Justice Belobaba replied in obiter as follows:
“A federal or provincial legislature is sovereign and cannot bind itself. The provincial legislature can over-rule or contradict a previously enacted law. A subsequent enactment that is inconsistent with an earlier enactment is deemed to impliedly repeal the earlier enactment to the extent of the inconsistency. Thus, the argument that the City of Toronto Act somehow imposed an immutable obligation to consult cannot succeed. The Province was entitled to enact Bill 5 and ignore completely the promise to consult that was set out in the previous law.”5
It could be argued that the EBR, like the City of Toronto Act, is merely a Provincial statute with which the Province need not comply in enacting new legislation. Moreover, the ruling in Mikisew suggests that even a Constitutional duty to consult may not bind a government in the enactment of primary legislation. Mikisew’s iteration of this principle renders it uncertain whether the Province did indeed have a legal obligation to consult the public in introducing Bill 4. By contrast, however, the promulgation of regulations under primary legislation is subject to judicial review,6 and it is possible that the portions of Greenpeace’s Application concerning the introduction of O Reg 386/18 could lead to a finding that the Province did indeed breach its obligations to consult under the EBR.
The 30-day public consultation period regarding Bill 4 closed on October 11, 2018 and Bill 4 is currently awaiting its third reading before the Legislative Assembly of Ontario. It remains to be seen if and how the public consultation period will affect the content of Bill 4 and whether Greenpeace’s Application will proceed.
1 Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 at para 102 [Mikisew].
2 Ibid at para 117.
3 See, for example, Reference re Amendment to the Constitution of Canada,  1 S.C.R. 753.
4 City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 at para 18 [City of Toronto].
5 Ibid at para 17.
6 See, for example, Ian Hanna v. Attorney General for Ontario. 2011 ONSC 609.