“When states are absent, rights -by any definition- are impossible to sustain. States are not structures to be taken for granted, exploited or discarded, but are the fruits of long and quiet effort. It is tempting but dangerous to fragment the state.” – Timothy Snyder [i]
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Nine Ontario Indian bands are suing Canada and Ontario, claiming that the recent resource project “fast track” legislation enacted by the legislatures of each of them is unconstitutional on the ground that Aboriginal bands were excluded from the policy and lawmaking processes and deliberations that preceded the enactment of each law.
They argue that by being so excluded the respective legislatures breached the “consult and accommodate” duty owed to Aboriginal peoples, breached an alleged “honour of the Crown” duty, and breached duties allegedly owed to them under UNDRIP.
In British Columbia, after having the Province’s free entry mining system declared unconstitutional, the victorious Gitxaala band, its appetite for undemocratic power not yet satisfied, appealed the judgment to the B.C. Court of Appeal, asking the appeal court to rule that First Nations must be consulted before any legislation is passed affecting their Aboriginal rights.
Notwithstanding that they hold no elected office or other function in the various relevant legislatures, Aboriginal leaders are now arguing that whenever any legislature in Canada is considering passing a law that might affect or impact any section 35 Aboriginal right, then Aboriginals have the right to meaningfully participate in all procedural and deliberative aspects of the legislative lawmaking processes and deliberations prior to the enactment of same.
They argue that their rights in these circumstances are tantamount to having the right to veto any such proposed parliamentary legislation.
Their argument is a curious reversal of the famous “no taxation without representation” argument. The leaders of these tragically civically infantile, racial sub-group of Canadians in effect argue in their lawsuits: “no taxation for Aboriginals in Canada, but mandatory representation for Aboriginals in the Canadian lawmaking process.”
The basis of their lawsuits is a serious legal flaw in the 2018 Supreme Court of Canada Mikisew Cree case, which in the main decided, but in a confusingly indefinite manner, that the section 35 duty to consult and accommodate doctrine does not apply to parliamentary legislative action.
Seven of the nine Justices in Mikisew decided that it is inappropriate for courts to scrutinize the law‑making process, which includes the development of legislation by parliaments, Crown ministers and their functionaries.
The seven Justices pointed to longstanding constitutional principles which underlie this reluctance to judicially supervise the law‑making process.
They wrote that 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 would require courts at the instance of Aboriginal litigants to improperly trespass onto the legislature’s domain.
They wrote that parliamentary sovereignty mandates 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 Aboriginal consultation obligations would constrain all Canadian parliaments.
They wrote that 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.
They wrote that if 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, (not legislative conduct), is inapplicable in the legislative sphere, this 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 duly enacted legislation pursuant to section 52(1) of the Constitution.
Furthermore, they wrote, recognizing a constitutionally mandated duty to consult during the process of preparing and deliberating 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 operations of government to a halt. What is now complex and difficult could become drawn out and dysfunctional.
Finally, they wrote, 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 the duty to consult in the preparation of legislation.
As the seven Justices wrote, the courts are ill‑equipped to deal with the procedural complexities of the legislative process, which would be made even more complex if a duty to consult Aboriginal groups and bands were included in this 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.
As UNDRIP had not been passed in 2018, the Court in Mikisew Cree did not consider it.
The serious legal flaw in the Mikisew Cree decision, which the nine Aboriginal bands in Ontario and the Gitxaala band in B.C. are partially basing their cases on, is the fact that, on close analysis, one concludes that only four of the nine Justices clearly wrote and decided the above supposedly clear legal principle of there being absolutely no duty to consult in the lawmaking processes of Canada’s parliaments.
Two of the Justices of the Court dissented, deciding that, based on the honour of the Crown doctrine, the duty to consult should be applicable to the parliamentary lawmaking process.
These two were now-retired Rosalie Justice Abella, the granddaughter of Holocaust survivors who inexplicably wrote in the Daniels decision that a person with “Indian blood”, (a scientific fiction, and, with the concept –“ impure blood”- having underlaid the Holocaust and killed members of her own ancestral family ), might qualify as a Metis, and Justice Sheilah Martin, who wrote in the recent Kruk decision that a woman rape victim in court proceedings arising from it should be described as “a person with a vagina”.
Four Justices, led by former Justice Russell Brown, wrote in effect that, for the reasons briefly stated above, in no circumstances should Aboriginal peoples have the right to be consulted and accommodated in the parliamentary lawmaking process.
Three Justices, Wagner, Gascon and Karakatsanis, (the last of whom wrote the decision for all three of them), while agreeing that “the law-making process does not constitute “Crown conduct” that triggers the duty to consult”, then basically countermanded the definiteness of what they had just said by egregiously and thoughtlessly adding:
“…the Crown’s honour may well require judicial intervention where legislation may adversely affect -but not necessarily infringe- Aboriginal or treaty rights. However, the resolution of such questions must be left to another day. In this appeal, the issue was framed in terms of whether the duty to consult doctrine should apply to the law-making process. I find that it should not.”
In subsequent paragraphs of her Reasons, Justices Karakatsanis, Wagner and Gascon went on to muddy the waters further by suggesting that a future court, based upon “further doctrines that might be developed”, might declare a future law affecting Aboriginal rights unconstitutional based on some notion of legislators not dealing with Aboriginal peoples “honourably” in a particular future, possible lawmaking process.
Notwithstanding that the issue was not before the Court and had not been addressed by any party before it, she (and they) went on to airily opine that in another similar case an Aboriginal rights claimant might reasonably be able to claim a judicial declaration to the effect that validly enacted and constitutionally compliant legislation which merely “affected” Aboriginal rights, as opposed to infringing them, (“infringement” is the legally purposive word and, as stated, when applicable, is dealt with post-enactment under section 52(1) of the Constitution), which legislation somehow failed to “give effect to the honour of the Crown” – legislation that might be determined to be “not consistent with the Crown’s duty of honourable dealing toward Aboriginal peoples”-could be successfully challenged for being unconstitutional on some speculative non-section 52(1) basis, after it had been passed and acted upon.
Justice Russell Brown, (sadly for Canada now former Justice Russell Brown), in his Reasons, which were agreed to by Justices Moldaver, Rowe and Cote, forcefully disagreed with the Karakatsanis judicial trio for their irresponsible and unasked-for speculations about some future, merely possible, independent, standalone “duty of honourable dealing towards Aboriginal peoples”.
He wrote that her “speculation is inapplicable here.”
He wrote that she was “searching for a problem to solve (while at the same time expressly declining to solve it.)”
He wrote that her speculations:
…undercut the very constitutional principles of separation of powers and parliamentary privileges, and the constitutional limits that they impose upon judicial supervision in the legislative process, which support her conclusion that no duty to consult is owed in respect of that process, including legislative enactment. And in so doing she endorses the engorgement of judicial power -not required by the law of our Constitution but rather precluded by it- at the expense of legislatures’ powers over their processes. Far from preserving what my colleague calls “the respectful balance between the pillars of our democracy, this conveys inter-institutional disrespect.” (Italics in the original)
Justice Brown reminded Justice Karakatsanis that “the honour of the Crown is not a cause of action in itself; rather it speaks to how obligations that attract it must be fulfilled.”
He then accused her of doing just that: unprecedently treating the honour of the Crown doctrine – which she fancifully chose to label “the Crown’s duty of honourable dealing”- as an independent, standalone cause of action purportedly enforceable, as he wrote, “on legislators to either refrain from passing certain legislation because it “affects” rights writ large, or not to do so without consultation.” (italics in original)
Justice Brown raised a further compelling criticism of the Reasons of Justice Karakatsanis and her two supporters. He wrote that her “quixotic argument” about the honour of the Crown being possibly applicable to legislators passing laws in future that might merely “affect” Aboriginal rights, “would cast the law into considerable uncertainty”, which would inevitably increase litigation rather than provide the clarity needed from Canada’s top court to reduce it. He writes in this regard that “it is to the courtroom that my colleague’s unresolved speculation would direct (litigants)”, rather than, because of clear laws, to a successful settlement meeting with no lawsuit ever needed.
Referring to the duty of the highest court of any democracy, he wrote:
“An apex court should not strive to sow uncertainty, but rather to resolve it by, wherever possible (as here), stating clear legal rules. To be clear, then: judicial review of the legislative process, including post facto review of the process of legislative enactment, for adherence to s.35 and for consistency with the honour of the Crown, is unconstitutional.”
In the writer’s view this was an implicit valid criticism of Chief Justice Wagner, (who, as stated, sided in this case with Justice Karakatsanis.) He should have put his foot down. He should not have allowed this decision to be released until he had exhausted all efforts to have his Court speak as one, at least in terms of it producing a clear majority one way or the other on this issue of state-fragmenting national importance. He should have insisted that Justice Karakatsanis deal in her Reasons with Justice Brown’s compelling rationales for maintaining total parliamentary supremacy, and for fulfilling the Court’s duty in these contentious circumstances to give clear judicial guidance to all the lower courts and citizens of Canada.
This overly activist, careless, biased and unjudicial approach to Aboriginals in the court system is typical of the Wagner-led Supreme Court, as it was of the McLachlin-led Supreme Court.
The uncertainty inherent in the careless and irresponsible Mikisew Cree decision has led to the result that the admirably restrained and “conservative” Justice Brown predicted: legal delays and uncertainty, which are the bane of resource project financing, and ruinously expensive litigation.
The Notice of Application of the nine Ontario bands confirms the direct connection between their lawsuit and the speculative meanderings of Justices Karakatsanis, gascon and Wagner about a possible duty to consult in parliamentary lawmaking based on the speculative, standalone “Crown’s duty of honourable dealing”.
In an opening paragraph of the legal claim, referring to the flaw in Mikisew Cree left by the Karakatsanis trio and the two dissenters, (totalling five of the nine Justices), and to the “another day” foretold by the Karakatsanis trio, the Aboriginal bands allege:
“4. The Crown’s duty to act honourably to First Nations applies to the making and passing of legislation, as confirmed by a majority of the Supreme Court of Canada in Mikisew Cree First Nation v. Canada (Governor in Council), … It was left for another case to determine what form that honourable conduct might take. That case is now.”
These Aboriginal bands, and the Gitxaala band, all non-taxpaying, unelected Canadians representing about 5 per cent of the population of the country, cannot be allowed to win their cases.
The arguments of former Justice Brown, based on centuries of “long and quiet” constitutional efforts and practices (Timothy Snyder, headnote above) and rooted in common sense and workability, are unassailable.
Former Prime Minister Trudeau’s state-fragmenting UNDRIP laws and policies, also relied upon by the Aboriginal claimants, enshrine and institutionalize the doctrine of race, by positing the creation of permanent, separate, race societies within the Canadian nation state- race-based, totally dependent mini-states existing within the larger Canadian nation state- the former financed by the latter. Reflecting a conspicuous disdain for the whole texture of reality, they’re a civically immoral recipe for legal chaos, grave economic harm and social division.
The principle that Aboriginal peoples should have no mandatory legal say in the parliamentary lawmaking process should certainly apply to the Aboriginal legal arguments based on UNDRIP. The requirement for the “free, prior and informed” consent of Aboriginal groups potentially affected by proposed projects can realisticallyonly be relevant and applicable in the implementation phase of Crown already-legislatively authorized projects. Anything other than that would result in the complete paralysis of our governments.
UNDRIP indirectly acknowledges and addresses this, but this indirect acknowledgment has been wilfully ignored by our elected governments, and by the Aboriginal bands in their lawsuits, who pleaded every section of UNDRIP that supports their “free, prior and informed” consent arguments, except the key one that goes against them.
Article 46 of UNDRIP states in part:
“Nothing in the Declaration may be…construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”
UNDRIP, relied upon by the nine Ontario bands, and UNDRIP and the concept of Aboriginal title relied upon by the B.C. Gitxaala, endorse the concept of partial Aboriginal separation from Canada. As such they clearly impair the territorial integrity of Canada.
In an Aboriginal title area of Canada, “the Crown will vacate jurisdictional space and Aboriginal law will govern there”.
This not only impairs the territorial integrity of Canada, but it also impairs and fragments the sovereignty of our Crowns and the political unity of Canada.
A recent federal court decision declared that UNDRIP mandates “a deep level of consultation and negotiations geared towards a mutually acceptable agreement.” (italics added)
This is de facto Aboriginal veto language, which is unacceptable in a liberal democracy, where our duly elected parliaments, subject only to the Charter of Rights and Freedoms, must reign supreme.
UNDRIP must be repealed, but until it is, our Crowns, relying on Article 46 for their defense, must fight the Aboriginal UNDRIP lawsuits tooth and nail, including the ones discussed above.
They must also strongly urge the courts to eliminate the confusion left in our law by the Mikisew Cree decision, by strongly supporting former Justice Brown’s ruling in it, which ruling was based on the most fundamental, age-old principles of representative democracy.
UNDRIP cannot override these fundamental principles of Canada’s representative democracy.
There cannot be a duty to consult unelected Aboriginal peoples in the lawmaking processes of our parliaments.
Peter Best
Sudbury, July 22, 2025
[i] From Black Earth-The Holocaust as History and Warning, Tim Duggan Books, New York, 2015
