Contributed by Loïc Welch
“The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively” (para 96)
The Charter of Rights and Freedoms guarantees that every Canadian has a fundamental right to life, liberty, and security. Moreover, as stated by Dr. Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization, “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”
In Canada, the Crown has recognized and affirmed Indigenous rights, and has a duty to consult whenever governmental action may adversely affect these rights. However, what triggers this duty is being hotly disputed in the courts, as many cases have made their way to the Supreme Court of Canada in recent years.
The Duty to Consult
The relationship between Indigenous peoples and Canada is governed by the honour of the Crown, enshrined in section 35 of the Constitution and includes the duty to consult. This duty binds the Crown to consult Indigenous peoples whenever it contemplates actions potentially infringing Aboriginal rights. Moreover, as detailed in the Haida Nation decision, this duty is triggered even if the right or title potentially exists, but has not yet been determined to exist. The duty cannot be ignored if a consultation is requested. It requires that both parties deal in good faith.
To interpret the honour of the Crown as restricting its responsibility to only matters of Aboriginal rights and titles would run counter to reconciliation goals between the government of Canada and Indigenous peoples. After years of inquiry, the Truth and Reconciliation Commission put forth calls to action to guide the Canadian Government in recognizing its part played in the colonial history with regards to the marginalization of Indigenous peoples. This led to the establishment of the Principles respecting the Government of Canada’s relationship with Indigenous peoples. The sixth principle specifically states that “[t]he Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources” [added emphasis]. With this principle, the government recognizes that their duty towards Indigenous peoples extends beyond the duty to consult on purely Aboriginal rights and treaties. For instance, many Nations live and depend on the lands around them and their interests in these lands have a major impact on their health and general well-being. If the government intends to implement or disband regulations, through legislation, which may have adverse impact on neighbouring Nations, then it seems the duty to consult would be triggered.
Health extends beyond simply what you would go to the hospital for. There is a growing body of research that highlights what are termed “social determinants of health” which comprise social, economic, cultural, and political inequities influencing health outcomes of Indigenous peoples. With this in mind, it’s important to recognize that the colonial history and continuing marginalization of Indigenous peoples has profound effects on their mental, physical, and spiritual well-being. In fact, Indigenous peoples, both on reserve and off-reserve, suffer from serious health issues (e.g. increased rates of malnutrition, suicide, mental health issues, infectious diseases) as compared to the general Canadian population. While the Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 case, outlined in the following section, appears to deal exclusively with issues of Aboriginal rights and treaty rights, the repercussions are far-reaching and set precedent for immunizing legislation from the duty to consult. This duty has been recognized and circumscribed to executive actions. In other words, the government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.
The government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.
Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40
In 2012, the Government of Canada introduced two omnibus bills setting the course on environmental protection; no Indigenous Nations were consulted before the introduction of these bills. The Mikisew Cree First Nation brought an application for judicial review, stating that because of the potential impact of the omnibus legislation on their treaty rights, the Crown had a duty to consult in accordance with s. 35 of the Constitution.
The duty to consult is context-dependent and requires a proportionate consultation to the degree of infringement on the alleged right. In this case, the Mikisew Cree Nation contended that the legislation threatened their right to hunt, trap, and fish on their traditional territory—which have core implications to the way of life and health of the Nation. These rights were recognized and guaranteed by the Crown in Treaty 8, and the alleged breach by the omnibus bill would require “deep” consultation, proportionate to the infringement.
The reviewing judge agreed with the Mikisew, stating that the duty to consult had been triggered. However, the Federal Court of Appeal disagreed and found that the reviewing judge erred by reviewing legislative action, which is immune from review. The Mikisew appealed the decision to the Supreme Court of Canada. The majority concluded that duty to consult is only recognized and circumscribed to executive action. In other words, the government only has an obligation to consult Indigenous Nations where it is taking direct action, and not when developing legislation. The majority explained that the separation of powers found in the Constitution favours minimal interference from one branch of government to another (i.e. legislative, executive, and judiciary). The majority stated that “[a]pplying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature [para 38].” Moreover, the recourses used to mend a breach of the duty to consult would amount to undue judicial interference in the law-making process.
The Honourable Justices Abella and Martin JJ., concurring in-part, expressed their concern about the majority’s reasoning when it came to legislative immunity from judicial review in situations where the duty to consult is potentially breached. They contended that recognizing this immunity would essentially create a “gap in the s. 35 framework” and leave “Aboriginal rights-holders vulnerable to the same government objectives carried out through legislative, rather than executive, action [para 79].” The Justices continued, stating that the Crown was bound to its honour in all relations with Indigenous peoples and that the principle of parliamentary sovereignty does not absolve the Crown from consulting when potential rights or interests are at stake.
Commentary & Implications
The governing principles that guide the relationship between the Crown and Indigenous peoples in Canada denote the importance of respecting already-established treaty rights and Aboriginal rights. However, there is also a contention that the interests of Indigenous peoples extend beyond simply these categorized rights. In the third governing principle, it is stated that the honour of the Crown also ensures that Indigenous peoples are to be treated with respect like all other Canadians. Importantly, the goal of these principles is to recognize a duty of “good faith, the rule of law, democracy, equality non-discrimination, and respect for human rights.” Do Indigenous interests and human rights not include a fundamental right to health, such as that recognized by the World Health Organization? The Supreme Court of Canada, in Mikisew case, restricts the duty to consult to direct action by the government, rendering legislative direction which directly threatens many Indigenous peoples’ way of life immune from judicial oversight. In this case, the omnibus bills will weaken the protections in place for natural resources and food sources for the Mikisew Nation, thereby threatening their livelihood and other interests, such as health, which were previously protected by treaty.
Loïc Welch is a Senior Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.