Federal Court Confirms Limitations On Consultation During Legislative Process

In Courtoreille v. Canada (Decision), Chief Steve Courtoreille, on behalf of himself and the members of the Mikisew Cree First Nation (Mikisew), sought a declaration that the federal government has a duty to consult regarding the development and introduction of legislation that has the potential to affect Mikisew's treaty rights. In the Decision, the Federal Court (Court) confirmed that the Crown's duty to consult during the legislative process is limited to providing notice to the Mikisew of the proposed legislation's potential impacts to the Mikisew's treaty rights. For future bills which could potentially impact the Mikisew's treaty rights, notice should be provided upon introduction to Parliament and the Mikisew should be given a reasonable opportunity to make submissions. The Decision affirms the long-established separation of powers principle between the executive, legislative and judicial branches in the law-making context.