On January 8, 2012, the Mikisew Cree First Nation and the Frog Lake First Nation (the First Nations), both located in Alberta, filed notices of application (the Applications) with the Federal Court seeking judicial review of the omnibus statutes Bill C-38 and Bill C-45 (collectively, the Bills), as well as the federal government’s underlying policies that led to those enactments. Bill-C-38, which was passed as the Jobs, Growth and Long-term Prosperity Act, included substantial amendments to the federal Fisheries Act, National Energy Board Act, and Species at Risk Act, as well as a complete repeal of the Canadian Environmental Assessment Act and its replacement with the Canadian Environmental Assessment Act, 2012 (CEAA 2012). We released an Osler Update on April 27, 2012 with respect to Bill C-38 following its release this past year. Bill C-45 was passed following Bill C-38 and contained minor amendments to the Fisheries Act, the Indian Act and the CEAA 2012 as well as substantial amendments to the Navigable Waters Protection Act, which will become the Navigation Protection Act. These Bills generated considerable attention in the media but, until the filing of the Applications, had not been the subject of any court challenge.
Details of the Applications
The Applications have been brought against the Governor General in Council and various federal Ministers (the Ministers) and seek judicial review of these parties’ “ongoing course of conduct...intended to reduce federal environmental protection and environmental assessment” in the First Nations’ traditional territories. The First Nations seek: (i) declarations that the Ministers have a duty to consult with the First Nations regarding the development of the policies that led to the implementation of the Bills, as well as the implementation of the Bills themselves; (ii) declarations that the Ministers breached this duty; (iii) declarations that the Ministers and the Governor General in Council are required to consult with the First Nations regarding these matters in order to fulfill the federal government’s obligations under Treaty 6 and Treaty 8; and (iv) an order that the Ministers not take any further steps or actions that would reduce, remove, or limit Canada’s role in any environmental assessment that is being carried out, or that may be carried out, in the First Nations’ traditional territories until adequate consultation is complete.
Central to the Applications are assertions that the Bills and the federal government’s underlying policies are eroding environmental protections and the federal government’s role in Aboriginal consultation. Among the Applications’ claims are that:
the Bills reflect the federal government’s policy “that dramatically and significantly reduces existing federal environmental protection of the lands” in each First Nations’ traditional territory and “diminishes or eliminates federal environmental assessment of resource and other development”;
“the Ministers and the Governor General in Council have deliberately and methodically acted so as to reduce or eliminate opportunities for Canada and [First Nations] to consult about development in [the First Nations’] territory”;
the federal government’s policies “significantly reduce” the extent to which Canada is able to “address, minimize, avoid or require compensation for the adverse impacts of proposed development”; and
the government’s conduct “frustrates a significant aspect of [Treaty 6 and Treaty 8] by removing Canada from any effective role in managing activities that have the potential to adversely affect the rights assured in [Treaty 6 and Treaty 8]”.
In short, the Applications claim that the federal government knew or ought to have known that implementing the Bills would have an adverse effect on the First Nations’ treaty rights and would reduce the extent to which the federal government could address the adverse impacts of developments affecting those rights. As a result, the First Nations assert that the Governor General in Council and the Ministers owed them a duty to consult, which they breached.
Implications of the Applications
Canadian courts have historically upheld the principle of Parliamentary sovereignty, which allows the legislatures broad powers to develop policies and laws without undue constraint. One of the primary exceptions to this principle, however, is the need to adhere to the Canadian Constitution, which includes the recognition and affirmation of existing Aboriginal rights in section 35 of the Constitution Act, 1982. Several court cases have considered the principle of Parliamentary sovereignty in the context of legislative action that directly impacts Aboriginal rights. The subject of the Applications, however, is regulatory reform that seeks to streamline the regulatory review process. Contrary to the allegations in the Applications, these reforms preserve the role of federal environmental assessment and in fact strengthen environmental protections in certain areas (for example, in the enforcement provisions under the National Energy Board Act and the CEAA 2012). In addition, there is nothing in the Bills that affects the existence, scope or nature of Aboriginal rights or the Crown’s duty to consult with Aboriginal groups wherever the Crown contemplates action that may impact Aboriginal rights.
While we believe that the likelihood of these Applications succeeding is low, if they succeed, the scope of the Crown’s duty to consult will be significantly expanded and could cover a variety of legislative actions that indirectly affect Aboriginal rights, such as taxation or criminal law. This would have far-reaching implications on the practices of both provincial and federal levels of government.