Aboriginal groups in Ontario are protesting the Ontario government’s alleged failure to honour their constitutional duty to consult with them prior to its passage of Bill 5, the Protect Ontario by Unleashing our Economy Act.
British Columbia Aboriginal groups are protesting similar resource project “fast-track” legislation presently tabled by the B.C. government, alleging that the legislation represents “unilateralism” in that it was “created without consultation and cooperation” with them.
The Chief of the Onion Lake First Nation in Alberta asserts that Alberta’s proposed referendum bill is defective, for, among other reasons, that he, as “grand chief of the Confederacy of Treaty 6 First Nations… wasn’t consulted until the bill was already tabled in the legislature.”
These Aboriginal groups are wrong on the law.
The development of legislation by duly elected governments is legislative action that does not trigger the duty to consult.
Our governments are legally entitled to act “unilaterally” in this regard.
In the 2018 case, Mikisew Cree First Nation v. Canada the Supreme Court of Canada ruled that the duty to consult is an obligation that flows from the honour of the Crown, a foundational principle of Aboriginal law which governs the relationship between the Crown and Aboriginal peoples.
This duty requires the Crown to consult Aboriginal peoples before taking action that may adversely affect their asserted or established rights under s. 35 of the Constitution Act, 1982 and ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s. 35 rights.
The Court in Mikisew ruled that although the duty to consult has been recognized in a variety of contexts, Crown conduct sufficient to trigger the duty only includes executive action or action taken on behalf of the executive.
(Most of what follows is a summary of the headnote in Mikisew.)
The duty to consult doctrine does not apply to legislative action.
It is rarely appropriate for courts to scrutinize the law‑making process, which includes the development of legislation by Parliament, Crown ministers and their functionaries.
Longstanding constitutional principles underlie this reluctance to supervise the law‑making process.
The separation of powers between the legislative and executive functions of government is an essential feature of Canada’s Constitution. It recognizes that each branch of government will be unable to fulfill its role if it is unduly interfered with by the others. Recognizing that a duty to consult applies during the law‑making process may require courts to improperly trespass onto the legislature’s domain.
Parliamentary sovereigntymandates that the legislature can make or unmake any law it wishes, within the confines of its constitutional authority. Recognizing that the elected legislature has specific consultation obligations may constrain it.
Parliamentary privilege – freedom from interference with the Parliamentary work of Members of Parliament- also generally prevents courts from enforcing procedural constraints on the parliamentary process. Applying the duty to consult doctrine during the law‑making process would lead to significant judicial incursion into the workings of the legislature.
Applying a duty to consult to the development of legislation also raises practical concerns. If changes are made to a proposed bill to address concerns raised during consultation, these changes could later be undone by Parliament, as it is free to amend the proposed law. This may limit the possibility of meaningful accommodation. Additionally, private member bills would not trigger the duty, rendering the approach incongruous. Moreover, in the long chain of events contributing to the development of legislation, disentangling what steps the duty to consult applies to (because they are executive) and what actions are immune (because they are legislative) would be an enormously difficult task.
However, when legislation undermines s. 35 rights, Aboriginal groups are not left without a remedy. Simply because the duty to consult doctrine, as it has evolved to regulate executive conduct, is inapplicable in the legislative sphere, does not mean the Crown is absolved of its obligation to conduct itself honourably. While an Aboriginal group will not be able to challenge legislation on the basis that the legislature had failed to fulfill the duty to consult, it is always free to challenge that legislation in its Crown-executive implementation phase.
That all this is so should not be seen to diminish the value of consulting Aboriginal groups prior to enacting legislation that has the potential to adversely impact the exercise of Aboriginal or treaty rights. But the absence or inadequacy of consultation may be considered only once the legislation at issue has been enacted, and then, only in respect of a challenge under s. 35 to the substance or the effects of such enacted legislation, as opposed to a challenge to the legislative process.
Furthermore, recognizing a constitutionally mandated duty to consult during the process of preparing legislation would be highly disruptive to the carrying out of the work of the legislative process.
The preparation of legislation is not a simple process. Rather, it is a highly complex one involving multiple actors across government. Imposing a duty to consult at this stage could effectively grind the day‑to‑day internal operation of government to a halt. What is now complex and difficult could become drawn out and dysfunctional.
Finally, an additional and serious consequence of recognizing a duty to consult during the law‑making process would be the interventionist role that the courts would be called upon to play in order to supervise interactions between Aboriginal groups and those preparing legislation for consideration by Parliament and by provincial legislatures.
If a duty to consult were to be imposed on the legislative process, disputes would arise about the way that this obligation would be fulfilled. Affected parties would inevitably turn to the courts, who would be drawn into a supervisory role as to the operation of a duty to consult in the preparation of legislation.
The courts are ill‑equipped to deal with the procedural complexities of the legislative process. If a legislature chooses to participate in consultation with Aboriginal groups, the stage at which such consultation takes place is a matter of discretion. Interference by a court in the exercise of that discretion would offend the separation of powers.
Engaging the courts in regulating the exercise by Parliament and legislatures of their powers and privileges would be a profound change in Canada’s system of government.
(Summary ends.)
In my view the same principle, by analogy, would apply to situations created by the recent passage of UNDRIP legislation by the federal government, and DRIPA by B.C. The requirement for the “free, prior and informed” consent of Aboriginal groups potentially affected by proposed projects has to be only relevant in the implementation phase of Crown legislatively authorized projects. Anything other than that would result in the complete paralysis of our governments.
The Ontario, British Columbia and Alberta governments should proceed with their proposed legislation on the basis that they have no constitutional duty to consult Aboriginal groups or to obtain their “free, prior and informed” consent prior to enacting same.
Our Supreme Court and our federal and provincial governments have already substantially weakened and emasculated the sovereignty of our duly Crown governments, to the greatest harm to the national interest.
Acceding to the legally wrong arguments being made by Aboriginal groups that theyhave such a duty to consult or any similar duty in the legislative processes of our duly elected governments -federal and provincial- would be to weaken and self-emasculate their sovereign legislative powers and duties even more.
Peter Best
May 28, 2025
