In a decision Thursday involving an Alberta First Nation, a majority of the high court said the law-making process does not amount to Crown conduct that triggers the deeply entrenched duty to confer with Indigenous Peoples.
The ruling helps clarify the steps the federal government must take ó and when ó in upholding the Crown's obligation to act honourably in its dealings with Indigenous groups.
The Mikisew Cree argued that the former Conservative government should have consulted them on legislative proposals that would affect their treaty rights.
In 2012, the government introduced two omnibus bills proposing changes to Canada's environmental protection and regulatory processes. Bills C-38 and C-45 amended the Fisheries Act, the Species At Risk Act, the Navigable Waters Protection Act and updated the Canadian Environmental Assessment Act.
A Federal Court judge said there was a duty to consult the Mikisew because the proposals would arguably affect fishing, trapping and navigation.
The Federal Court of Appeal overturned the ruling, saying that including the duty to consult in the legislative process offends the doctrine of the separation of powers and the principle of parliamentary privilege. The decision prompted the Misikew to take their case to the Supreme Court.
All nine high court justices agreed that the Federal Court did not even have jurisdiction to review the actions of the ministers who drafted the bills, since the court is limited to scrutinizing measures taken by a federal board, commission or other tribunal.
With respect to the duty to consult, seven Supreme Court judges concluded there was no such obligation during the law-making process, but they split into three groups in spelling out their reasons.