The Courts acknowledged that the Mikisew Cree is a band within the meaning of the Indian Act, whose traditional territory is located in northeastern Alberta, and whose ancestors adhered to Treaty No. 8, which guarantees their right to hunt, trap, and fish throughout the territory covered by that treaty.

2 • The common law test established in the case of the Haida Nation states that the duty to consult exists when: 

(1) the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal or treaty right, and 2 Para 4 Mikisew challenge the proposed legislation at the Federal Court of Canada ("FCC"). The FCC agrees with the government of Canada. Mikisew appeal to the Federal Court of Appeals ("FCA"). The FCA agrees with the government of Canada. Mikisew appeal to the Supreme Court of Canada ("SCC"). The SCC agrees with the government of Canada. Legislation Introduced. (Not yet passed.) 

(2) contemplates conduct that might adversely affect it.

3 • The Courts concluded that the judicial branch of government could not interfere with the executive's policy choices to develop legislation. That would interfere with the legislative branch. The Courts said that their role comes into effect after legislation is passed, and not before. Allowing the courts a role before legislation is passed would blur the separation between the branches of government.

4 • The Courts also concluded that imposing the duty to consult during the legislative process offends the "separation of powers" doctrine and the principle of "parliamentary privilege". 

5 Imposing a duty to consult at any stage of the process, as a legal requirement, would not only be impractical and cumbersome and potentially grind the legislative process to a halt, but would also fetter ministers and other members of Parliament in their law-making capacity. 

As Justice Hughes astutely observed, "[...] intervention into the law-making process would constitute undue judicial interference on Parliament's law-making function, thus compromising the sovereignty of Parliament" (Reasons for Judgment at para. 71).

6 • The Courts considered the "honour of the Crown", and concluded that "Treaty No. 8 contained no special provisions that would allow the Mikisew, in preference to other Canadians, to intervene in the legislative process before a bill that may, in some arguable way, interfere with the Mikisew's treaty rights of fishing and trapping

7 It is the "honour of the Crown" from section 35 of the Constitution Act, 1982, the Royal Proclamation, 1763, and the reconciliation initiative of the Federal government that is the source of the duty to consult.

8 • The court first applied section 35 of the Constitution in R v. Sparrow (1990) and established the following process for a duty to consult case. First, the plaintiff must show an "Aboriginal" or treaty right, then an infringement on that right. Once those two factors are established, the burden shifts to the Crown to justify the infringement. To justify the infringement the Crown must demonstrate a valid legislative objective, that it upheld its honour of the Crown, and its fiduciary duty to First Nations peoples. The court indicated that consulting First Nations people is a part of upholding the honour of the Crown.

 

What would your decision have been if you were a Supreme Court Judge in this case? Explain

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In this scenario the Supreme Court of Canada SCC concluded that imposing the duty to consult du... View the full answer