In Mikisew Cree Nation, the Supreme Court dealt with a novel argument: does the duty to consult [DTC] attach to legislative action? The Court, rightly, answered no, holding unanimously that the Federal Court had no jurisdiction under the Federal Courts Act over a judicial review brought against Parliament’s law-making power. But the Court split into four sets of reasons on the substantive matter of whether the DTC applies to legislative action. While rejecting the challenge in this case, Karakatsanis J in the lead opinion left the door open to these sorts of challenges in the future. For the reasons I’ll explain below, I think this is a profoundly unprincipled way of reasoning about the issue—first, because it is an attempt to expand judicial power in violation of the separation of powers, and second, because it undermines the national certainty the Supreme Court is designed to provide.
The facts of the case are simple. In 2012, two omnibus bills affecting environmental protections were introduced and passed in Parliament, receiving Royal Assent. The Mikisew, with proven Aboriginal rights under Treaty 8, alleged that the Crown had the DTC them on these legislative changes to the environmental protection regime—arguing that it affected their constitutionally-protected rights. The Federal Court agreed with the Mikisew, holding that they were entitled to notice of the parts of the bills that would affect their interest, as well as an opportunity to make submissions. The Federal Court of Appeal reversed, concluding that the Federal Court had no jurisdiction over the matter.
The first opinion in the Supreme Court was written by Karakatsanis J. On the issue of jurisdiction, Karakatsanis J held that the Federal Courts Act only contemplates judicial review of Crown actors (defined as Her Majesty in right of Canada in s.2(1) of the Federal Courts Act) or federal boards, commissions, or other tribunals. On the first count, Karakatsanis J concluded that Her Majesty in right of Canada refers only to Crown actors in their executive, rather than legislative, capacity [15-16]. As well, the Crown is not a “board, commission, or other tribunal” as defined in ss. 2(1) and 2(2) of the Federal Courts Act.
This is enough to dispose of the case. But Karakatsanis J went on to address the merits, concluding that the DTC, which applies to “Crown conduct,” can only apply to executive action—not the actions of Ministers introducing legislation (acting in their legislative capacity). While Karakatsanis J acknowledged the “overlap” between executive and legislative functions in Westminster systems, here what was challenged was a direct exercise of legislative power under the Part IV of the Constitution Act, 1867 . This challenge, to her mind, implicated the separation of powers, parliamentary sovereignty, and parliamentary privilege [35-37]. But Karakatsanis J did not close the door to the challengers completely. She first noted that “the Crown’s honour may well require judicial intervention where legislative may adversely affect—but does not necessarily infringe—Aboriginal or treaty rights” . She then concluded her reasons by saying that “other protections may well be recognized in future cases” .
Abella J, concurring on the jurisdiction point, nonetheless wrote separately to say that the Court’s aboriginal law jurisprudence, specifically pertaining to the honour of the Crown, compelled a result that the DTC applied to Parliament. To her mind there was no “doctrinal or conceptual justification which would preclude a [DTC] in the legislative context” . The “formal label applied to the type of action that the government takes…”, to Abella J, has no impact on the sanctity of rights protected in s.35 of the Constitution Act, 1982—whether that action is legislative or executive. Abella J would introduce a requirement that legislatures consider whether their chosen legislative process affecting Aboriginal rights “…accords with the special relationship between the Crown and Indigenous peoples of Canada” .
Brown J also wrote separately, while concurring on the jurisdictional point, to attack Karakatsanis J’s mixed message on the DTC in a legislative context. To him, Karakatsanis J’s reluctance to close the door completely on the issue would “throw this area of the law into significant uncertainty” . To Brown J, “…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” . This is because, while the separation of powers in Canada is not rigid, this does not mean that the roles of the legislative and executive branches are “indistinguishable for the purposes of judicial review” . The history of parliamentary sovereignty—for example, the hard-fought adoption of the Bill of Rights of 1688—compelled the conclusion that “…parliamentary and judicial functions have been clearly separated from Crown control” . And so, Karakatsanis J’s opinion was “searching for a problem to solve (while at the same time declining to solve it)” . This situation would invite courts to, potentially in the future, take a greater supervisory role over the legislative process in a way that is at odds with the separation of powers [135, 142].
Finally, Rowe J also wrote separately, outlining mainly the practical problems with an approach invited by Karakatsanis J. Specifically, what types of legislation would trigger the DTC? Who would need to be consulted? And at what stage in the legislative process would consultation take place? .
There is much in this decision worth noting, but I want to focus on Karakatsanis J’s problematic reasons and their implications for the separation of powers and the Supreme Court’s general method of deciding cases.
Each of the opinions decided the case on the question of jurisdiction. That is, the Federal Court had no judicial review jurisdiction over the decision of a legislature—not a Crown actor per se nor a federal “board, commission, or other tribunal.” This should have decisive, and Karakatsanis J should have gone only so far as to explain that finding—particularly for the purposes, for example, of preventing forum-shopping whereby a new claimant could bring relief against the Crown in a provincial superior court and make the same arguments (s.17 of the Federal Courts Act contemplates a system of concurrency where claims can be brought against the Crown in provincial or federal court so long as statute does not say otherwise). Obviously, the jurisdictional finding in this case dovetails with a finding that legislation is not “Crown conduct.”
In consideration of this, Karakatsanis J should have ended her comments at the finding that the court had no jurisdiction because the enactment of legislation is not “Crown conduct.” For her to go further and leave the door open to future legislative challenges based on the honour of the Crown–which also undergirds the DTC– is severely flawed for two reasons: (1) it is not prescribed by the structure of the Constitution, nor would it be a good policy idea and (2) it introduces uncertainty.
Brown J is right to point out the contradictory nature of Karakatsanis J’s opinion. On one hand, she writes that parliamentary sovereignty, the separation of powers, and parliamentary privilege preclude the challengers’ preferred outcome. This is all correct for the reasons outlined by Brown J and Rowe J. But then, in service to unknown goals, she decides that these principles can be violated just a bit—that in a future case, they could be compromised to permit the sort of challenges sought by the claimants here where rights are adversely affected by “the Crown” in enacting legislation even when the legislation itself is constitutional (see Karakatsanis J’s reasons at paras 3, 25, 44 and 52). This means, to Karakatsanis J, that the separation of powers/parliamentary sovereignty are negotiable in a manner uncontemplated by the Constitution. Her guiding light seems to be the hobby-horse of changing circumstances; some future time when the separation of powers and parliamentary sovereignty will give way to allow these sorts of challenges.
Query why these principles preclude challenges based on a failure to abide by the DTC now, while in the future, they could allow challenges based on an “adverse effect” on Aboriginal rights. The same principles apply. Under the current doctrine, in order for a DTC violation to occur, asserted Aboriginal rights must be “adversely affected” (Rio Tinto, at para 31). But Karakatsanis J now purports to say that a DTC violation and adverse effect are two different things–and that the principles of parliamentary sovereignty and the separation of powers could allow an independent claim based on the latter in the future. The honour of the Crown is not a free-standing right to challenge legislation, and most importantly, no matter the legal label, the Crown does not enact legislation.
Notwithstanding this unprincipled distinction drawn by Karakatsanis J regarding the DTC, it is completely unclear why the constitutional principles relied on by Karakatsanis J would operate to, in the future, allow an “adverse effect” challenge based on the amorphous “honour of the Crown.” While the separation of powers and parliamentary sovereignty are principles that are necessarily variable in our constitutional monarchy, that variation is included in the structure, not as a product of the times. For example, Karakatsanis J herself notes that the Cabinet and the legislature operate in some ways as a piece—this is a basic feature of Westminster government. But as Brown J noted, the separation of powers does not expand and contract to permit something tomorrow that isn’t allowed today; in this case, a constitutional challenge that is fundamentally unknown to the legal system. Karakatsanis J frames the requirements of the separation of powers and legislative sovereignty in language that calls to mind a standard (see Brown J’s reasons at para 103). But these principles are rules that bind the actors in the constitutional system. They are only open to negotiation to the extent the Constitution prescribes that negotiation.
The target for Karakatsanis J—and more honestly, Abella J—seems to be the sphere of authority granted by the Constitution Act, 1867 to the legislature. Karakatsanis J seems to want to, slowly but surely, increase judicial oversight over that sphere and erode what the Constitution expressly contemplates. This is wrong simply because it is not prescribed by any constitutional text or principle. While the honour of the Crown is a constitutional principle, it is unclear why that principle is ill-served as applied to legislation by the existing Sparrow justification framework. In other words, why does the honour of the Crown compel the requirement of some new cause of action in violation of the very same principles relied on by Karakatsanis J?
The beneficiary of such a duty would not be Aboriginal peoples, but the judiciary. Its existence would expand judicial power beyond deciding cases towards ongoing supervision of the legislative process. This seems to be a legal fact wholly lost on the Supreme Court. It seeks to enlarge its power and process beyond its constating statue (the Supreme Court is simply a statutory court, no matter the pains it takes to say otherwise) and beyond the constitutional division and separation of powers. Judicial oversight of legislative acts could create distorted inefficiencies in our system of government that achieve no ends—in this case, I have doubts it would achieve the ends of reconciliation sought by the Court.
For some, this would be enough to counsel against the idea. But Karakatsanis J and Abella J seem to believe that this is required as a matter of policy. It seems, to them, that courts are able to vindicate the rights of Aboriginal peoples by monitoring the legislative process, and in fact, should in order to promote “reconciliation.” Even on this count, they fail. First, reconciliation would be an admirable goal if anyone, especially the Supreme Court, could adequately define what it means. But at any rate, the Supreme Court itself has recognized that its august halls are not suited to the promotion of Aboriginal rights (Clyde River, at para 24—an opinion jointly penned by Karakatsanis J). And this seems just logical. Why are nine patrician judges any better able to define reconciliation? Why should Aboriginal peoples have to spend years and thousands of dollars trying to define to these same nine judges what reconciliation is? This would be enough to question the wisdom of an approach advocated by Karakatsanis J and Abella J, but of course, there are also the practical concerns raised by Rowe J.
A final broader point about the Supreme Court’s method of deciding cases. Part of the reason for the Supreme Court’s existence is its ability to settle law. In fact, the Supreme Court was founded under s.101 of the Constitution Act, 1867 “for the better Administration of the Laws of Canada.” It does nothing of the kind when it leaves open the door just a crack to an argument that it otherwise rebuffed. This seems to be a repeat habit for the Court. In Gosselin, the Court did the same thing regarding positive rights under s.7 of the Charter. In Wilson, Justice Abella wrote separately to argue for a new standard of review framework in absence of arguments on that front, and despite acknowledging that a future case would have to deal with the issue. And for now, the separation of powers and legislative sovereignty preclude DTC-like legislative challenges—but not forever.
This method of deciding cases wholly undermines certainty. As Brown J notes, it invites enterprising litigants and judges to argue that this case—their case—is the one that was contemplated by the Court or a judge of the Court in Gosselin, or Wilson, or Mikisew. Courts should decide cases. If they seek to depart from precedent in the future, they should be able to do, according to generally recognized and principled criteria. But the Court shouldn’t write its own precedents with the express understanding that they will be overturned.
In a way, all of this expresses the Supreme Court’s hubris. It’s hard to believe that the Court would want to download onto the lower courts a general duty to supervise legislative action, especially when it would be structurally incompatible with the Constitution, practically difficult, and likely unsuccessful as a way to vindicate Aboriginal rights. What we should seek to avoid is a jurocracy, as Herbert Weschler once put it. But, with the door open to a some sort of DTC in the legislative context, we are well on our way.