In Search of Honourable Crowns and Legitimate Constitutions:Mikisew Cree First Nation v Canadaand the Colonial Constitution

Abstract

This article examines the recent Supreme Court of Canada decision in Mikisew Cree First Nation v Canada (Governor General in Council). There, the Court substantively engaged the question of whether the Crown’s duty to consult and accommodate Indigenous peoples about issues affecting their rights extends to the preparation of legislation. While the Court was unanimous in rejecting the claim, its unanimous opinion was confined to a procedural question. The substantive question concerning the duty to consult resulted in four distinct, and largely irreconcilable, judgments. As a result, uncertainty continues to characterize the law in this area. This uncertainty is the result of an Aboriginal rights jurisprudence that has been developed by the courts on the basis of a set of unexamined constitutional presumptions concerning the place of Indigenous peoples in the constitutional order. The resulting doctrine is unable to effectively mediate constitutional disputes between the Crown and Indigenous peoples. This article examines the Mikisew Cree decision in light of this conclusion, arguing that the decision represents a logical outcome of a doctrine that has been concerned with answering the wrong set of questions. Part II maps the four decisions to provide an overview of the lines of reasoning. Part III outlines the positive aspects of each of the lines of reasoning; it is our view that each has something positive and worthwhile to contribute to the analysis. Despite this, the judgments each have significant problems. Part IV addresses these problems and outlines the nature of the incompatibility between the judgments. Part V argues that the confused state of the decision flows from a fundamental contradiction between a vision of section 35 as often articulated by Indigenous peoples – that is, as jurisdictional in nature – and the more limited conception put forward by the courts. Finally, Part VI articulates how revisiting the Charter-like framework the Supreme Court of Canada has developed for section 35 provides a workable path toward a constitutional order that is both honourable and clearly structured.

How Should Courts Respond to Political Questions? Exploring the Dialogical Turn in the Supreme Court of Canada’s Federalism and Indigenous Case Law

“…Although the Court agreed the case should be dismissed on a technicality, the justices were split over the substantive question about the appropriate scope of the duty. The four different positions presented by various justices reveal fundamentally different positions on the place of section 35 rights in Canada's Constitution (Nichols and Hamilton 2020). Of interest in this article is the appropriate role of the judiciary to facilitate dialogue in political processes.…”

“…For the justices who supported imbuing the duty to consult in legislative lawmaking, their solution amounted to ensuring that legislative processes reflect the “special relationship between the Crown and Indigenous peoples” ( Mikisew Cree First Nation 2018, para. 93), which is likely to lead to Indigenous peoples having a limited role in shaping legislation (Nichols and Hamilton 2020, 356).…”