Treaty Promises and the Duty to Consult on Legislation

Abstract

The members of Mikisew Cree First Nation are descended from signatories of Treaty 8. Their traditional territory encompasses Wood Buffalo National Park and parts of Alberta’s tar sands developments. In 2013, they filed suit in Federal Court, arguing that the Crown had a duty to consult Mikisew Cree First Nation prior to proposing amendments to environmental protection legislation that could impact upon their treaty rights. The litigation made its way to the Supreme Court of Canada, where the Court resolved the case on jurisdictional grounds. In three separate opinions, however, the majority went on to explain that the Crown did not have a duty to consult Mikisew Cree First Nation. The majority proceed with barely a nod to Treaty 8, preferring instead to focus on high-level constitutional principles to categorically rule out a duty to consult in the context of proposed legislation. In this article, we show that this approach is difficult to reconcile with the specific promises made by Canada in Treaty 8. While it is not obvious how the duty to consult would best be integrated into the legislative process, and there are normative and pragmatic limits on the role of the courts, we argue that Treaty 8 would have offered an ideal, discrete context for developing the doctrine of the duty to consult with respect to legislation in a manner that reconciles it with the separation of powers and parliamentary sovereignty, rather than invoking the latter principles to oust the duty to consult.