Last week's Supreme Court of Canada decision in Mikisew Cree First Nation v. Canada (Governor General in Council) has sparked a great deal of conversation around the Section 35 duty to consult Indigenous people in the constitution, with many commentators asserting that the Supreme Court must have gotten it wrong when they asserted that the Duty to Consult didn't extend to the drafting of legislation.  What virtually all of these commentators get wrong and I've watched enough political and journalist panels on the political shows to demonstrate this is that they virtually all ignored the fundamental substance of the decision, which is that it respects the separation of powers, as well as parliamentary privilege, and that can't be ignored.

What is the doctrine of separation of powers?  It asserts that the executive, the legislature, and the courts should act separately, and that they shouldn't interfere with one another's business.  In the wake of this decision, there has been some misplaced commentary that Canada can't possibly have such a doctrine because our executive is drawn from the legislature, which is both specious and ignores the aspects of the judiciary also being separate.  While executive, legislative and judicial branches are separated in the 1867 Constitution, there are overlaps within executive and legislative branches owing to the practice of Responsible Government, but in no case is there any "fusion" between executive, legislative and judiciary, which needs to be kept in mind here.  As well, we need to remember that we also live by parliamentary privilege, where they are free from the interference of the courts in the execution of their duties.

When the Mikisew First Nation asked the Federal Court to assert the power to step into the legislative process in order to ensure that the duty to consult was being fulfilled, they were advocating for the courts to violate both the separation of powers and parliamentary privilege to meet their demands.  That the Federal Court initially agreed before being overturned by the Federal Court of Appeal and the Supreme Court of Canada is fairly alarming, because it shows that the lower courts were willing to engage in a direct overreach of their powers in order to assert powers that they should not have under our constitutional order, and that should be alarming.

Justice Brown, in his reasons in the Mikisew decision, pointed to this as breaching the scope of judicial review.  In paragraph 125 of the decision, Brown wrote that "Judicial review is 'the power to determine whether [a] particular law is valid or invalid'… It therefore contemplates review of enacted legislation for constitutional compliance and does not, as a general rule, contemplate the exposure of legislative processes to judicial scrutiny."  Brown emphasized the difference between laws and bills as part of that reasoning.

Why does this matter?  Asking the courts to get involved at any stage of the legislative process is untenable for Parliament.  Imagine the chaos that would happen if at any point, someone could file an injunction with the Federal Court over a piece of legislation, and it being slowed down while the Court decided whether or not to hear the case, and if they did, allow them to dictate terms for bills that have not yet passed.  No bill could ever get passed, and the Federal Court would become clogged with such appeals.  And while it may only start with cases stemming from Section 35, how long would one imagine that it would take before they decided that other groups could file similar challenges to bills during the legislative process?

One of the core elements in this case is the problem of people who resort to the courts when they lose at politics.  I would also say that it was definitely an element of that in the Mikisew decision to challenge this in court, no matter how legitimate their grievance may be, and why the danger of contagion would be present if the courts decided to abrogate the separation of powers or the notion of parliamentary privilege as it relates to the courts staying out of the drafting process.

I also have questions about how the duty to consult would work in a legislative capacity.  Now, nothing is stopping a government from engaging the duty while in the drafting process, and trying to craft legislation that fully engages the interests of Indigenous communities, but if this were to be a codified requirement by the courts, what would that look like?  Would there be some kind of official checklist that the government could present to the courts when challenged?  Would they need to consult the more than six hundred individual First Nations, plus Métis and Inuit communities in advance of preparing any bill?  The Supreme Court also noted that if the reasoning presented by the Mikisew First Nation were valid, that only government bills would apply and not private members' bills, creating yet more incongruities.

Contrary to some of the commentary, which has focused narrowly on the duty to consult rather than the separation of powers and parliamentary privilege aspects of the decision, nothing in this decision weakens the Section 35 duty to consult.  In fact, it reinforces that the government still has the obligation to undertake it just that it must be undertaken by the government, and that it wasn't extended to the legislative process.  As Philippe Lagassé pointed out, in order to reconcile this with the separation of powers, it means that MPs and senators who want to step up and ensure that the duty to consult is fulfilled, they have to do the work and not pass it off to judges or bureaucrats and it is so easy for parliamentarians to do just that.  We often see governments and parliamentarians restrain themselves and wait for the courts to push them so that they can lay the blame on them when it comes to the next election, and when you look at how the duty to consult can get politicized with things like pipeline projects, you can imagine why they would rather lay the blame with the courts for their failures rather than looking at their own inaction.  Parliament and the courts each have their own jobs to do trying to confuse the two will only lead to bigger problems, which should be pointed out in talking about the Mikisew decision.