Osgoode Home > Osgoode Digital Commons > Journals > SCLR > Vol. 94 (2020)

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

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

Craig M. Scott, Osgoode Hall Law School of York UniversityFollow

Abstract

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.

The analysis of the opinions in Mikisew Cree II also critically addresses the failure of all four opinions to reference, let alone discuss, the adoption by the UN General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). This omission is particularly glaring given the directly relevant content of article 19 of UNDRIP, which reads: “States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” It is reasonable to assume that all members of the Court ignored UNDRIP in part because they were aware of the House of Commons’ adoption in May 2018 of a government[1]supported private member’s business bill (Bill C-262) designed to integrate UNDRIP into both federal executive decision-making and federal legislative process. At the time of Mikisew Cree II, Bill C-262 had not yet become law, as it had neither been passed in the Senate nor given Royal Assent. Rather than draw on UNDRIP interpretively as a matter of a direct relationship between international law and the Canadian constitution, the members of the Court may well have decided to wait and see what happens legislatively first by way of implementation of – even as at least two judgments (comprising five members of the Court) also signalled that the Court may not be willing to wait long before imposing some form of constitutional duty through an evolving interpretation of section 35 and/or unwritten principles of the Constitution..

The article argues that, in the optic of UNDRIP and UNDRIP-embracing legislation (Bill C 2-262 did become law), the current constitutional standards of consultation (whether with respect to executive decision-making through the “duty to consult” or with respect to legislation through consultation as a factor of some sort in justification-of-infringement analysis) must be supplemented not only through extension to primary law-making but also by layering onto “consultation” more demanding standards related to “cooperation” and “consent”. Ultimately, an amalgam of consultation, cooperation and consent standards has the potential to bring about an approach to legislative process, as well as to parliamentary sovereignty writ large, that reworks our normative order. Such an approach would embrace a framework of transnationalized sovereignty to help inform Indigenous-Crown interjurisdictional constitutionalism and a form of co-governance within a new Parliamentarianism.

Citation Information

Scott, Craig M.. "Consultation, Cooperation and Consent in the Commons’ Court: “Manner and Form” after Mikisew Cree II." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 94. (2020).
DOI: https://doi.org/10.60082/2563-8505.1379
https://digitalcommons.osgoode.yorku.ca/sclr/vol94/iss1/6