In yesterday’s Canadian Legal Ease column, Osgoode Hall Law Professor Kent McNeil argued that “Idle No More movement’s objections to Bill C-45 therefore have sound bases in Canadian constitutional law”. This provoked some reaction on twitter – in particular, the learned @mrubenst observed that Professor McNeil did not address the “very open question about duty to consult for legislative action”. Now, I am not an expert on this (or anything, really) and certainly not in a position to challenge Professor McNeil or Mr. Rubenstein on aboriginal law. But I am in a position to haphazardly undertake a CanLII search for relevant precedents, and here’s what I found.

The ‘duty to consult’ under section 35 arises, according to the Supreme Court in Haida Nation, “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”. Where this standard is met, it is incumbent on the government to engage in consultations of various degrees as befitting the circumstances. This being a duty on the Crown, however, the question here is whether there is a duty to consult prior to the passage of a statute – such as omnibus Bill C-45, which has been a primary impetus behind the Idle No More movement.

The Supreme Court expressly left the question open in Carrier Sekani, where it chose to “leave for another day the question of whether government conduct includes legislative action” (para 44). Lower courts, however, have come to divergent conclusions. The Alberta Court of Appeal in R v Lefthand concluded (regarding regulations passed under the Fisheries Act)

There can however be no duty to consult prior to the passage of legislation, even where aboriginal rights will be affected… It would be an unwarranted interference with the proper functioning of the House of Commons and the Provincial Legislatures to require that they engage in any particular processes prior to the passage of legislation. The same is true of the passage of regulations and Orders in Council by the appropriate Executive Council. Enactments must stand or fall based on their compliance with the constitution, not based on the processes used to enact them. (para 38)

While this line seems perfectly bright, the Alberta Court of Appeal may have softened its position in Tsuu T’ina Nation. The Court noted that Lefthand was not so unequivocal after all, and stated – in the context of regulations establishing a water management plan:

Accordingly, even if the Legislature itself does not have a duty to consult prior to passing legislation, the duty may still fall upon those assigned the task of developing the policy behind the legislation, or upon those who are charged with making recommendations concerning future policies and actions. (para 55)

The British Columbia Supreme Court addressed the issue Adams Lake, a case involving the establishment of a mountain ski resort municipality. The Court noted that the duty to consult under section 35 has been applied in “an extremely broad range of circumstances” and that “honour of the Crown must be interpreted generously”. It concluded, along similar lines to Tsuu T’ina, that “the duty to consult cannot be ousted on the basis that the exercise of a statutory power became law by the issuance of an order in council” (para 124).

So, Lefthand’s bright line rule – no duty to consult prior to the passage of legislation – might not be so bright after all. The reluctance to place a duty to consult with respect to the passage of legislation is understandable, particularly as a) the duty is owed by the Crown (as represented by the executive), and not the legislature as such, and b) adequate consultation, which can potentially take many years, might unduly hamper the legislature in fulfilling its democratic mandate. It is not clear, however, that the same rationale applies with equal force to the passage of ‘secondary’ or ‘delegated’ legislation – those regulations and orders in council which are passed by representatives of the Crown (Ministers and Cabinet) under powers delegated by statute. Moreover, finding that there is never a duty to consult with respect to legislation or secondary legislation may simply defer the issue.

Assuming that the aboriginal or treaty right in question may be affected under the Haida Nation standard above, one solution available to the courts is a bifurcated approach. If the legislation requires certain executive action or inaction, then some degree of consultation may be called for prior to its passage, as the ultimate implementation of the law (at which stage few would argue no duty arises) would necessarily require it. For example, it would be difficult to argue that legislation effectively selling off an entire tract of land over which a band holds title would not attract a duty to consult prior to its passage, because the legislation would effectively be self-implementing, and any subsequent consultation vapid. Alternatively, if the legislation in question provided the executive with significant discretion, then the duty of consult could be fulfilled – and perhaps better fulfilled – by consultation during implementation (including implementation through secondary legislation). Consultation at this stage could be both meaningful and attentive to the specific needs of aboriginal stakeholders once it is clear how their rights, title or interests may be effected.

In short, my answer to the question posed in the title of this post is ‘I have no idea’.  As the Alberta Court of Appeal aptly noted: the “exact content of the duty to consult is in its formative stages, and is still being hammered out on the anvils of justice”.  Hopefully this issue makes it up to the Supreme Court before too long.

Benjamin Oliphant is a recent graduate of the University of Toronto Faculty of Law, with a particular interest in labour, administrative and constitutional law. He is currently an articling student, and will be clerking for the 2013-2014 term. You can visit his SSRN page here.