By Cam Cameron, Kaisha Thompson
The Supreme Court of Canada released its decision in Mikisew Cree First Nation v. Canada (Governor General in Council) on October 11, 2018. Seven justices found that the duty to consult Indigenous peoples does not apply to the law-making process, primarily on the grounds of the constitutional principles of separation of powers and Parliamentary sovereignty.
They held that ministerial action in developing legislation is legislative, not executive, in character and so is immune to judicial review. However, two justices disagreed and held that the honour of the Crown governs the relationship between the entire government of Canada and Indigenous peoples and so gives rise to a duty to consult and accommodate that applies to all contemplated government conduct with the potential to adversely impact asserted or established Aboriginal and treaty rights, including legislative action.