The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Article Title

Consultation, Cooperation and Consent in the Commons’ Court: “Manner and Form” after Mikisew Cree II


In Mikisew Cree II, a large majority of the Supreme Court of Canada took the view that the Constitution Act, 1982, section 35 duty to consult and accommodate cannot constrain the legislative process, and that the legislative process includes bill preparation activities carried out by Ministers and by officials in the executive. My limited purpose in this article is to show how the question of participatory constraints on legislative processes that affect Indigenous legal interests has more been deflected than resolved by this ruling — at the same time as this deflection has productive potential by virtue of how it has served the ball into Parliament’s court. This is due to the Court recognizing in very general terms the availability to Parliament of a little-discussed doctrine of Westminster constitutionalism — self-imposed “manner and form” legislative constraints on parliamentary sovereignty — notwithstanding the Court declining to interpret section 35 as externally imposing the duty to consult on the legislative process as a constitutional manner and form requirement.